NATIONAL WILDLIFE FEDERATION V CLEVELAND CLIFFS IRON CO
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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 JULY 30, 2004
NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA WILDLIFE
COUNCIL
Plaintiffs-Appellees,
v
No. 121890
CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP
Defendants-Appellants,
and
MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSELL J. HARDING, Director
Of the Michigan Department of
Environmental Quality,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case presents the question of whether plaintiffs
have standing to bring a suit on behalf of their members
under the Michigan Environmental Protection Act (MEPA), MCL
324.1701 et seq.
We conclude that, under the particular
circumstances of this case, plaintiffs have standing.
We
affirm the decision of the Court of Appeals and remand this
case to the trial court for further proceedings.
I. BACKGROUND
Defendant
Cleveland
Cliffs
Iron
Company
(Cleveland
Cliffs), in partnership with defendant Empire Iron Mining
Partnership,
Mine
in
planned
Michigan’s
to
expand
Upper
operations
the
Empire
Cleveland
Peninsula.
at
Cliffs
applied for a permit through the Michigan Department of
Environmental Quality (MDEQ), which held a public hearing to
receive public comment.
Eventually, the
MDEQ
issued the
permit.
Plaintiffs,
on
behalf
of
their
members,
petition for a contested case hearing with the
filed
MDEQ.
a
The
hearing referee held that plaintiffs lacked standing and
dismissed
the
Marquette
Circuit
dismissal,
and
matter.
the
Plaintiffs
Court,
Court
which
of
then
appealed
affirmed
the
Appeals
denied
to
the
referee’s
plaintiffs’
application for leave to appeal.
Meanwhile,
Court
(venue
plaintiffs
was
later
filed
suit
changed
to
in
Marquette
including a count asserting a claim under
1
Ingham
MEPA.
1
Circuit
County),
Plaintiffs
MCL 324.1701(1) provides:
(continued . . . .)
2
sought
a
temporary
injunction
denied
of
the
restraining
further
mine
injunction,
order
and
expansion.
finding
a
The
that
preliminary
trial
plaintiffs
court
lacked
standing.
Plaintiffs appealed, and the Court of Appeals
reversed.2
The Court analyzed the statute and found that it
simply permitted “any person” to bring suit.
This
Court
granted
leave,
limited
to
the
issue
of
“whether the Legislature can by statute confer standing on
a
party
standing.
who
does
not
satisfy
the
judicial
test
for
See Lee v Macomb Co Bd of Comm’rs, 464 Mich 726
[629 NW2d 900] (2001).”3
(continued
. . . .)
The attorney general or any person may
maintain an action in the circuit court having
jurisdiction where the alleged violation occurred
or is likely to occur for declaratory and
equitable relief against any person for the
protection of the air, water, and other natural
resources and the public trust in these resources
from pollution, impairment, or destruction.
MCL 324.1704(1) provides:
The court may grant temporary and permanent
equitable relief or may impose conditions on the
defendant that are required to protect the air,
water, and other natural resources or the public
trust
in
these
resources
from
pollution,
impairment, or destruction.
2
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
unpublished memorandum opinion, issued June 11, 2002
(Docket No. 232706).
3
468 Mich 944 (2003).
3
II.
STANDARD
OF
REVIEW
Whether a party has standing is a question of law that
we review de novo.
Lee, supra at 734.
III. STANDING
First,
contrary
to
the
three
concurring/dissenting
opinions, one of which "disavows" its past support for Lee,
supra, one of which reaffirms its past opposition to Lee,
and
one
of
which
maintains
its
support
for
Lee
while
distinguishing it into nothingness, we reaffirm our support
for
the
principles
of
standing
set
forth
in
Lee,
and
explain the importance of Lee for our constitutional system
of separated powers and for the preservation of a judiciary
operating within proper boundaries.4
4
Justice
WEAVER'S
concurrence/dissent
views
the
majority's
ultimate
determination
concerning
whether
plaintiffs possess standing as a foregone conclusion in
light of the majority's continued support for Lee.
It is
wrong in this assertion. In fact, we agree with the United
States Supreme Court in Lujan v Defenders of Wildlife, 504
US 555, 578; 112 S Ct 2130; 119 L Ed 2d 351 (1992), which,
although holding, as Lee does, that standing is of
constitutional
dimension,
proceeds
to
observe
that
“[n]othing in this contradicts the principle that ‘the
. . . injury required by Art. III may exist solely by
virtue of statutes creating legal rights, the invasion of
which creates standing.’”
This is affirmed in the
concurring opinion of Justice Kennedy, joined by Justice
Souter, in which they similarly observe, “Congress has the
power to define injuries and articulate chains of causation
that will give rise to a case or controversy where none
existed before, and we do not read the Court's opinion to
suggest a contrary view.” Id. at 580.
4
The
Michigan
Constitution
provides
that
the
Legislature is to exercise the “legislative power” of the
state, Const 1963, art 4, § 1, the Governor is to exercise
the “executive power,” Const 1963, art 5, § 1, and the
judiciary is to exercise the “judicial power,” Const 1963,
art 6, § 1.
The importance of these allocations of power
is reaffirmed in Const 1963, art 3, § 2, which states:
The powers of government are divided into
three
branches:
legislative,
executive
and
judicial.
No person exercising powers of one
branch shall exercise powers properly belonging
to another branch except as expressly provided in
this constitution.
By separating the powers of government, the framers of
the Michigan Constitution sought to disperse governmental
power and thereby to limit its exercise.
“[T]here [is] no
liberty . . . if the power of judging be not separated from
the
legislative
and
executive
powers.”
Madison,
The
Federalist No 47.5
As a term that both defines the role of the judicial
branch and limits the role of the legislative and executive
branches,
it
is
clear
that
the
5
scope
of
the
“judicial
The separation of powers provision in each of
Michigan's Constitutions is “in harmony with American
political theory, the State government [being] divided into
the three historic departments, the legislative, executive,
and judicial . . . .” Schwartz v Flint, 426 Mich 295; 395
NW2d 678 (1986) (citation omitted).
5
power”
is
significance.
branch
to
a
matter
of
considerable
constitutional
Given the final authority of the judicial
accord
meaning
to
the
language
of
the
constitution, the term “judicial power” cannot ultimately
be defined by the Legislature any more than “unreasonable
searches and seizures”6
or the “equal protection of the
laws”7 can ultimately be defined by the Legislature.8
The
“judicial
power,”
although
not
specifically
defined in the Michigan Constitution, is distinct from both
the legislative and executive powers.
As former Justice
THOMAS COOLEY has written:
It is the province of judicial power [] to
decide private disputes between or concerning
persons; but of legislative power to regulate
public concerns, and to make law for the benefit
and welfare of the state. [Cooley, A Treatise on
the Constitutional Limitations (Little, Brown &
Co, 1886) at 92.]
The “judicial power” has traditionally been defined by
a combination of considerations: the existence of a real
dispute, or case or controversy; the avoidance of deciding
6
Const 1963, art 1, § 11.
7
Const 1963, art 1, § 2.
8
In short, the deference that the concurrence/dissents
purport to give to the Legislature is misplaced for the
deference owed by this Court must first be to the
constitution and only then to the coordinate branches of
our state government.
6
hypothetical questions; the plaintiff who has suffered real
harm;
the
existence
of
genuinely
adverse
parties;
the
sufficient ripeness or maturity of a case; the eschewing of
cases that are moot at any stage of their litigation; the
ability to issue proper forms of effective relief to a
party; the avoidance of political questions or other nonjusticiable
controversies;
the
avoidance
of
unnecessary
constitutional issues; and the emphasis upon proscriptive
as opposed to prescriptive decision making.
Perhaps
power”
most
been
has
the
its
critical
element
requirement
of
of
a
the
“judicial
genuine
case
or
controversy between the parties, one in which there is a
real, not a hypothetical, dispute, Muskrat v United States,
219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in
which
the
plaintiff
has
suffered
a
“particularized”
or
personal injury.
Massachusetts v Mellon, 262 US 447, 488;
43
67
S
Ct
597;
“particularized”
L
injury
Ed
2d
has
1078
(1923).
generally
Such
that
required
a
a
plaintiff must have suffered an injury distinct from that
of the public generally.
Absent
a
Id.
“particularized”
injury,
there
would
be
little that would stand in the way of the judicial branch
becoming intertwined in every matter of public debate.
a
taxpayer,
for
example,
opposed
7
the
closing
of
a
If
tax
“loophole”
by
the
Legislature,
challenged in court.
the
legislation
might
be
If a taxpayer opposed an expenditure
for a public building, that, too, might be challenged in
court.
If a citizen disagreed with the manner in which
agriculture officials were administering farm programs, or
transportation
officials’
highway
programs,
or
social
services officials’ welfare programs, those might all be
challenged
in
court.
If
a
citizen
opposed
new
prison
disciplinary policies, that might be challenged in court.
In each instance, the result would be to have the
judicial
branch
of
government—the
least
politically
accountable of the branches—deciding public policy, not in
response
to
a
real
dispute
in
which
a
plaintiff
had
suffered a distinct and personal harm, but in response to a
lawsuit from a citizen who had simply not prevailed in the
representative
processes
of
government.
To
allow
the
judiciary to carry out its responsibilities in this manner
is to misperceive the “judicial power,” and to establish
the judicial branch as a forum for giving parties who were
unsuccessful
in
the
legislative
simply another chance to prevail.
and
executive
processes
To allow this authority
in the judiciary would also be to establish the judicial
branch as first among equals, being permitted to monitor
and
supervise
the
other
branches,
8
and
effectively
possessing a generalized commission to evaluate and secondguess the wisdom of their policies.
As the United States
Supreme Court observed in Mellon:
The administration of any statute . . . is
essentially a matter of public and not of
individual concern. . . . The party who invokes
the [judicial] power must be able to show not
only that the statute is invalid but that he has
sustained
or
is
immediately
in
danger
of
sustaining some direct injury as the result of
its enforcement, and not merely that he suffers
in some indefinite way in common with the people
generally. . . . To [allow standing under a
different understanding] would be not to decide a
judicial controversy, but to assume a position of
authority over the governmental acts of another
and co-equal department, an authority which we
plainly do not possess. [Id. at 487-489.]
When a broadening and redefinition of the “judicial
power”
comes
not
from
the
judiciary
itself,
usurping
a
power that does not belong to it, but from the Legislature
purporting to confer new powers upon the judiciary, the
exercise of such power is no less improper.
The acceptance
by one branch of the expansion of the powers of another
branch is not dispositive in whether a constitutional power
has
been
properly
exercised.
When
the
Legislature
redefines the “judicial power” by expanding the realm of
disputes cognizable by the judiciary, such expanded power
on the part of the courts invariably comes at the expense
of the executive, whose policies then become subject to the
perpetual review and revision of the courts.
9
As the United
States
Supreme
Court
observed
in
Lujan
v
Defenders
of
Wildlife, 504 US 555, 576-577; 112 S Ct 2130; 119 L Ed 2d
351 (1992):
Vindicating the public interest (including
the public interest in Government observance of
the Constitution and laws) is the function of the
Congress and the Chief Executive. . . . To permit
Congress to convert the undifferentiated public
interest in executive officers’ compliance with
the law into an “individual right” vindicable in
the courts is to permit Congress to transfer from
the President to the courts the Chief Executive’s
most important constitutional duty, to “take Care
that the Laws be faithfully executed,” Art II, §
3.
It would enable the courts, with the
permission of Congress, “to assume a position of
authority over the governmental acts of another
and
co-equal
department,”
and
to
become
“virtually continuing monitors of the wisdom and
soundness of Executive action.
We have always
rejected that vision of our role . . . .
[Citations omitted; emphasis in original.]
“We
must
wisely
as
judges
observed,
ultimate
recall
the
guardians
of
other
the
that,
as
Mr.
Justice
Holmes
branches
of
Government
liberties
and
welfare
people in quite as great a degree as the courts.’”
of
‘are
the
Flast v
Cohen, 392 US 83, 131; 88 S Ct 1942; 20 L Ed 2d 947 (1968)
(Harlan, J., dissenting), quoting Missouri, Kansas & Texas
R Co v May, 194 US 267, 270; 24 S Ct 638; 48 L Ed 971
(1904).
Despite
the
remarkable
statement
in
Justice
WEAVER’S
concurrence/dissent, post at 6 that the majority “expands
the power of the judiciary,” the exact opposite is true.
10
By its adherence to Lee, the majority opinion rejects a
constitutional regime in which the judicial branch can be
invested with extra-constitutional powers at the expense of
the other branches, in particular the executive.
One need
only be a casual student of government to recognize the
extraordinary rarity of an institution of government, such
as this Court, choosing, on the basis of constitutional
objection, not to exercise a power conferred upon it by
another branch of government.
It is impenetrable reasoning
to equate such an abnegation of power with an enhancement
of power.
The requirement of a genuine case or controversy as a
precondition for the exercise of the “judicial power” is
not a mere fine point of constitutional law.
Rather, as
Professor Alexander Bickel once wrote,
[There are] sound reasons, grounded not only
in theory but in the judicial experience of
centuries, here and elsewhere, for believing that
the hard, confining, and yet enlarging context of
a real controversy leads to sounder and more
enduring judgments. [Bickel, The Least Dangerous
Branch (2d ed) (Yale University Press, 1986) at
115.]
Professor
Bickel
proceeded
to
observe
that
a
contrary
result in Mellon—one failing to recognize the importance of
a plaintiff having suffered an “immediate, personal injury”
in order to have standing to bring a lawsuit—would have
“materially
altered
the
function
11
of
judicial
review
and
seriously undermined any acceptable justifications for it.”
Id. at 122.9
Justice Robert Jackson has similarly written
that the case or controversy requirement of the federal
constitution is “perhaps the most significant limitation
upon judicial power.”
The Role of the Supreme Court in the
American System of Government (Harvard University Press,
1955) at 101.
And Justice Antonin Scalia has observed:
The Judiciary would be, “from the nature of
its functions, . . . the [department] least
dangerous
to
the
political
rights
of
the
constitution,” not because its acts were subject
to
legislative
correction,
but
because
the
binding effect of its acts was limited to
particular cases and controversies.
[Plaut v
Spendthrift Farms, 514 US 211, 223; 115 S Ct
1447; 131 L Ed 2d 328 (1995), quoting Hamilton,
The Federalist, No 78.]
9
Professor Kenneth Karst has written in the Oxford
Companion to the Supreme Court (Oxford University, 1992),
“By
tying
the
court’s
power
of
constitutional
interpretation to their its power to decide cases, Marshall
founded the legitimacy of judicial review on its connection
to that case-deciding function.”
Id. at 458.
Professor
Karst writes further:
In general, when governmental officials act,
only someone who is personally injured by those
acts has standing to complain that they are
unlawful.
Generally, a plaintiff does not
satisfy the requirement of standing by alleging
that governmental action was unconstitutional, if
the only harm alleged has been caused by someone
else, or if the illegality in question is only a
violation of some other person’s legal right.
[Id.]
See also Lujan, supra at 562.
12
The
concurrence/dissents,
overrule
Lee,
barriers
protecting
judiciary.
would
erode
the
stating
one
people
of
that
the
from
they
most
significant
government
would
by
the
As Justice Harlan warned in his dissent in
Flast, supra at 130, “There is every reason to fear that
unrestricted public actions might well alter the allocation
of
authority
Government.”
among
the
three
branches
of
the
Federal
In United States v Richardson, 418 US 166,
188; 94 S Ct 2940; 41 L Ed 2d 678 (1974), Justice Powell
observed,
“[r]elaxation
of
standing
requirements
is
directly related to the expansion of judicial power . . .
significantly
alter[ing]
the
allocation
of
power
at
the
national level, with a shift away from a democratic form of
government.”
And in Lewis v Casey, 518 US 343, 349-350;
116 S Ct 2174; 135 L Ed 2d 606 (1996), the Supreme Court
opined:
It is the role of courts to provide relief
to claimants . . . who have suffered, or will
imminently suffer, actual harm; it is not the
role of courts, but that of the political
branches, to shape the institutions of government
in such fashion as to comply with the laws and
the Constitution. . . . [T]he distinction between
the two roles would be obliterated if, to invoke
intervention of the courts, no actual or imminent
harm were needed, but merely the status of being
subject to a governmental institution that was
not organized or managed properly.
When courts exceed the “judicial power,” the interests of
some
other
branch
of
government
13
necessarily
must
be
implicated and, as already observed, these normally will be
the interests of the executive branch.
As then-Professor,
later-Justice Scalia put it:
[T]he law of standing roughly restricts
courts to their traditional undemocratic role of
protecting individuals and minorities against
impositions of majorities, and excludes them from
the even more undemocratic role of prescribing
how the other two branches should function in
order to serve the interests of the majority
itself. [Scalia, The doctrine of standing as an
essential element of the separation of powers, 17
Suffolk U L Rev 881, 894 (1983).]
Professor
Kenneth
Karst
has
described
some
of
the
practical implications of relaxing the case or controversy
requirement in greater detail:
These
developments
in
jurisdictional
doctrine are representative of the emergence of
what Abram Chayes has called “public law”
litigation.
In the traditional common-law model
of a lawsuit there is one plaintiff and one
defendant; the plaintiff personally initiates the
lawsuit, and on both sides the parties control
the conduct of the case; the parties' dispute
concerns legal obligations founded on facts in
the past; the remedies requested are closely
fitted to the specific rights of the plaintiff;
and the case culminates in a single trial and a
single judgment.
If, however, a class of
plaintiffs sues a governmental institution such
as a school board or the managers of a state
hospital or prison, the lawsuit is likely to
diverge from the common-law model.
Public
interest lawyers may invent the lawsuit and then
go out to find some plaintiffs. . . . The whole
process
has
a
“legislative”
or
even
“administrative” look.
The interests of the
particular parties in whose name the suit was
filed seem secondary.
[Oxford Companion to the
Supreme Court, supra at 458-459.]
14
In this process, the authority of the executive branch is
replaced by the authority of the judiciary, public policy
decisions
increasingly
come
to
be
made
exclusively
by
lawyers in robes, the negotiation and compromise and giveand-take of the representative processes is replaced by the
absolutist
“rights”
analyses
of
individual
judges,
and
local control of public decision making comes increasingly
to be replaced by unaccountable judicial decision making.
One
committed
to
a
governmental
system
in
which
most
important public policy decisions are eventually made by
the
courts,
and
in
which
the
representative
processes
increasingly become little more than a prelude to judicial
decision
making,
would,
almost
certainly,
begin
by
dismantling longstanding and traditional preconditions to
the
exercise
of
the
“judicial
power”
reflected
in
the
concept of standing.10
Thus, we continue to adhere to Lee, and conclude that
Lee was correct in its holding that questions of standing
implicate the constitutional separation of powers, and that
10
“This
explicit
requirement
[of
a
case
or
controversy] is the constitutional key to understanding the
forms and limits of judicial power.” McDowell, Curbing the
Courts (Louisiana State Press, 1988) at 195. Standing was
restricted to certain forms “so as not to allow the judges
a ‘roving commission to do good.’” Id. at 172.
15
forsaking
this
proposition
“would
constitutional architecture . . . .”
imperil
Id. at 735.
the
As the
United States Supreme Court observed in Allen v Wright, 468
US 737, 751-752; 104 S Ct 3315; 82 L Ed 2d 556 (1984):
The requirement of standing . . . has a core
component derived directly from the Constitution.
* * *
[T]he law of Art. III standing is built on a
single basic idea—the idea of separation of
powers. . . . [Q]uestions . . . relevant to the
standing inquiry must be answered by reference to
the Art. III notion that federal courts may
exercise power only “in the last resort, and as a
necessity,”
and
only
when
adjudication
is
“consistent with a system of separated powers and
[the dispute is one] traditionally thought to be
capable
of
resolution
through
the
judicial
process.” [Quoting Chicago & Grand Trunk R Co v
Wellman, 143 US 339, 345; 12 S Ct 400; 36 L Ed
176 (1892) and Flast, supra at 97.]
See also Lujan, supra at 561.
If the Legislature were permitted at its discretion to
confer
jurisdiction
genuine
case
or
upon
this
controversy,
Court
unmoored
from
any
Court
would
be
this
transformed in character and empowered to decide matters
that
have
historically
been
within
Governor and the executive branch.
over
the
manner
in
which
the
the
purview
of
the
If there is dispute
Governor
is
enforcing
or
administering a law, such dispute, in the normal course,
must be resolved through the executive process.
are citizens who believe the Governor
16
If there
is wrongfully or
inadequately
consumer
enforcing
protection
or
or
administering
occupational
the
safety
state’s
or
worker’s
compensation or revenue laws, it is their right to petition
or lobby the Governor in order to alter these policies.
It
is also the right of such citizens to petition or lobby the
Legislature in order to cause them to alter these laws.
Finally,
of
course,
it
is
the
right
of
citizens
to
participate in the channels of public debate, and in the
political processes, in order to influence public policies,
or to place in public office persons who more accommodating
to their points of view.
Unless there is an individual who
has personally been injured by the Governor’s enforcement
or administration of these laws, it is not normally the
role of the judicial branch to monitor the work of the
executive
and
determine
responsibilities
in
Legislature—perhaps
executive—has
an
even
purported
whether
it
acceptable
with
to
the
impose
is
carrying
fashion.
acquiescence
this
role
out
its
That
the
of
the
upon
the
judicial branch does not alter this constitutional reality.
See, e.g., Hayburn’s Case, 2 US (2 Dall) 409; 1 L Ed 436
(1792), in which the United States Supreme Court refused to
accept as part of its “judicial power” the responsibility
imposed upon it by the Congress of examining the pension
claims of Revolutionary War veterans.
17
The Court concluded
that the Congress could not “constitutionally assign to the
Judiciary any duties, but such as are properly judicial,
and to be performed in a judicial manner,” id. at 410; see
also Osborn v Bank of United States, 22 US (9 Wheat) 738; 6
L Ed 204 (1824).11
Justice
WEAVER'S
efforts
to
distinguish
between
the
United States and the Michigan constitutions in defining
the "judicial power" are unconvincing.
She misapprehends
both of these constitutions.
11
Almost
certainly,
the
analyses
of
the
concurrence/dissents invite further efforts to redefine the
“judicial power” in questionable ways. See, e.g., Plaut v
Spendthrift Farms, supra, in which the Congress sought to
require the Supreme Court to retroactively reopen final
judgments, judgments that were apparently unpopular with
the Congress.
Two justices, Stevens and Ginsburg, in
dissent indicated their willingness to accept this modified
conception of the “judicial power.” “We must remember that
the machinery of government would not work if it were not
allowed a little play in its joints.” Id. at 266 (Stevens,
J., dissenting), quoting Bain Peanut Co v Pinson, 282 US
499, 501; 51 S Ct 228; 75 L Ed 482 (1931). Nor, when the
“judicial power” becomes a mere function of legislative
determination, is there any guarantee that this authority
will only be broadened.
The concurrence/dissents have no
principled way of addressing efforts by the legislative
branch to contract, rather than to expand, the “judicial
power.”
In this regard, see the brief amicus curiae of
Joseph L. Sax at 9 in which Professor Sax appears to argue
that Const 1963, art 6, § 13, conferring jurisdiction upon
the circuit courts “in accordance with rules of the Supreme
Court,” enables this Court to confer jurisdiction upon the
circuit court through our rules without regard to the
boundaries of the “judicial power.”
18
In the first section of the judicial articles of the
federal and the Michigan constitutions, their respective
judicial
branches
power.”
The
are
federal
vested
simply
constitution
with
states,
the
“judicial
“The
judicial
Power of the United States shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.”
1.
US Const, art III, §
The Michigan Constitution states, “The judicial power
of the state is vested exclusively in one court of justice
. . . .”
Const 1963, art 6, § 1.
The purpose of these
sections is to define—equivalently to what has been done
earlier
in
the
first
sections
of
the
legislative
and
executive articles—the scope of authority of the judicial
branch.
That
authority
consists
exclusively
of
the
“judicial power.”
Nothing
further
is
said
in
either
of
these
constitutions specifically defining the “judicial power,”
with three exceptions in the Michigan Constitution, each of
which
undercut
the
argument
of
the
concurrence/dissents
that there is no fixed meaning to the “judicial power” and
that
it
is
susceptible
to
constant
19
redefinition
at
the
discretion of the other branches.12
Const 1963, art 3, § 8
allows either house of the Legislature to request the Court
to issue an “advisory opinion” on the “constitutionality of
legislation”; Const 1963, art 9, § 32 confers upon “any
taxpayer of the state” standing to bring suit to enforce
the
provisions
of
the
so-called
Headlee
Amendment;
and
Const 1963, art 11, § 5 empowers “any citizen of the state”
to bring injunctive or mandamus proceedings to enforce the
civil service laws of the state.
To the extent that the
people of Michigan, through their constitution, have chosen
to
confer
potentially
upon
the
beyond
judiciary
the
three
traditional
specific
“judicial
authorities
power,”
it
seems unlikely that the people intended that any other such
nontraditional authority could simply be incorporated as
12
If the “judicial power” can be redefined at the
behest of the legislative or executive branches, one
wonders
why,
under
the
analyses
of
the
concurrence/dissents, it cannot also be redefined at the
behest of the judicial branch itself, for why should that
branch alone be disabled in its ability to give new meaning
to this constitutional term? There is no principled reason
from the perspective of the concurrence/dissents why a
court could not expand upon its own authority by
disregarding traditional restraints upon the exercise of
the “judicial power.” By transforming the “judicial power”
from a concept of constitutional stature into a mere
prudential concept, to be decided
absent any readilydiscernible standards, the concurrence/dissents would give
considerable impetus to a more powerful judicial branch at
the expense of coordinate branches of government.
20
part of the “judicial power” by a simple majority of the
Legislature.13
The
federal
concurrence/dissents
constitution
find
diverges
relevant
from
that
the
the
Michigan
Constitution where, in art III, § 2, it states:
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their
Authority;—to
all
Cases
affecting
Ambassadors, other public Ministers and Consuls;—
to
all
Cases
of
admiralty
and
maritime
Jurisdiction;—to
Controversies
to
which
the
United States shall be a Party;—to Controversies
between two or more States;—between a State and
Citizens of another State;—between Citizens of
different States;—between Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens
thereof,
and
foreign
states,
Citizens
or
[14]
Subjects. [Emphasis added.]
Contrary to what is implicit in the concurrence/dissents,
this is not a definitional provision that seeks to give
meaning to the “judicial power.”
provision
defining
the
limited
Rather, art III, § 2 is a
judicial
power
of
the
13
Justice KELLY interprets these provisions, conferring
broader-than-traditional standing in specific areas of the
law, as conferring broader-than-traditional standing in any
area of the law in which the legislature chooses to confer
such standing. Post at 7, n 5. The majority draws exactly
the opposite inference from these provisions.
14
Although it is not relevant to the instant analysis,
several of these provisions have been subsequently rendered
effectively null and void by the Eleventh Amendment.
21
federal
judiciary,
in
contrast
power of the state judiciary.
articles
of
the
two
to
the
plenary
judicial
The respective legislative
constitutions
are
analogous
to
the
judicial articles: the legislative article of the Michigan
Constitution does not purport to define the authority of
its
Legislature
concerning
its
(for
example,
authority
nothing
over
is
marriage,
said
therein
divorce,
child
custody, child support, alimony, or foster care), while the
legislative
article
of
the
federal
constitution
does
affirmatively confer authority upon the Congress, article
I,
§
8.
The
legislative
state
power,
judicial
is
power,
plenary,
as
requiring
with
no
grant of authority in the state constitution.
the
state
affirmative
The federal
judicial power, on the other hand, as with the federal
legislative power, is limited.
Such power is exclusively a
function, or a creation, of the federal constitution, and,
therefore, must be affirmatively set forth.
fashion,
the
federal
judicial
power
must
In similar
also
be
affirmatively set forth, for it is also a function, or
creation, of the federal constitution.
Thus, US Const, art
III, § 2 does not define the “judicial power”; rather it
defines what part of the “judicial power” within the United
States belongs to the federal judiciary, with the remaining
part belonging exclusively to the state judiciary.
22
That
art
III,
§
2
variously
employs
the
terms
“cases”
or
“controversies” is not to confer a particular meaning upon
the “judicial power,” but merely is to employ words that
are necessary to the syntax of allocating the “judicial
power” between the federal and state governments.15
concurrence/dissents
would
confuse
the
allocation
The
of
a
power with its definition, and would thereby define the
federal “judicial power” in the narrowest possible manner
by limiting it through reference alone to the existence of
a
“case.”16
Even
from
the
perspective
of
the
15
“In the Constitution of the United States, we
perceive, not the express creation of a judicial power, but
the recognition of it as a necessary part of the government
. . . .” Rawle, A View of the Constitution of the United
States (Nicken, Philadelphia, 1829) ch 21, pp 199-200.
16
Although Madison suggested at the constitutional
convention that the federal “judicial power” ought to be
“limited to cases of a Judiciary Nature,” II Farrand,
Records of the Federal Convention of 1787 (Yale University,
1966) at 430, there is remarkably little discussion in the
Federalist Papers, the records of the convention, or in
other
constitutional
source
materials
concerning
the
precise meaning of the “judicial power.” Similarly, there
is virtually no discussion concerning the meaning of this
term
in
the
“Official
Record”
of
the
Michigan
constitutional convention of 1961, or in source materials
surrounding Michigan’s earlier constitutions. We attribute
this to the fact that the term was sufficiently well
understood by scholars, lawyers, judges, and even laymen of
the time as not to require further elucidation.
No one
would have understood the “judicial power” to constitute an
essentially
empty
constitutional
vessel
into
which
majorities of the Legislature were free to pour in novel
meanings.
23
concurrence/dissents, is there no more permanent aspect of
the “judicial power” than that it pertain to a “case”?
In
fact,
the
“judicial
power”
in
the
Michigan
Constitution, with the several exceptions enumerated above,
is
the
same
“judicial
power”
as
in
the
federal
constitution,17 and it is the same “judicial power” that has
informed the practice of both federal and state judiciaries
for
centuries.18
recognized
by
Lee,
These
and
we
historical
continue
to
principles
adhere
to
were
them
today.19
17
In accord, Daniels v People, 6 Mich 381, 388 (1859);
Sutherland v Governor, 29 Mich 320, 324 (1874); Risser v
Hoyt, 53 Mich 185, 193; 18 NW 611 (1884); Johnson v Kramer
Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586
(1959); House Speaker v State Admin Bd, 441 Mich 547, 554;
495 NW2d 539 (1993), all cited in Lee, supra at 738.
18
One constitutional framer observed, “The third great
division of the powers of government is the judicial
authority. . . . The judicial authority consists in
applying, according to the principles of right and justice,
the constitution and laws to facts and transactions in
cases, in which the manner or principles of this
application are disputed by the parties interested in
them.” James Wilson, 1 Lectures on Law, pp 296-297 (1791).
19
With all due respect, Justice WEAVER, post at 5, is
breathtakingly mistaken in peremptorily describing as a
“judge-made standing test” an element of the “judicial
power” that would have been viewed by the framers of both
the federal and the Michigan constitutions as essential to
the separation of powers, itself perhaps the most essential
pillar of our constitutional structure.
24
At
the
same
time
that
the
concurring/dissenting
justices extol their own commitment to preservation of the
natural environment, they might well devote equal attention
to the preservation of our constitutional environment.
By
their diminishment of a traditional check and balance upon
the
exercise
of
concurring/dissenting
the
“judicial
justices
would,
if
power,”
their
the
position
were ever to gain a majority, inflict considerable injury
upon our system of separation of powers and the rule of law
that it has produced.
IV. APPLICATION
At a minimum, standing consists of three elements:
First, the plaintiff must have suffered an
“injury in fact”—an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’
Second, there
must be a causal connection between the injury
and the conduct complained of—the injury has to
be “fairly . . . traceable to the challenged
action of the defendant, and not . . . the result
[of] the independent action of some third party
not before the court.”
Third, it must be
“likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.”
[Lee, supra at 739, quoting Lujan,
supra at 560-561.]
Plaintiffs seek injunctive relief on behalf of their
members.
Nonprofit organizations, such as plaintiffs, have
standing to bring suit in the interest of their members
where
such
members
would
have
25
standing
as
individual
plaintiffs.
See generally Trout Unlimited, Muskegon White
River Chapter v White Cloud, 195 Mich App 343, 348; 489
NW2d 188 (1992); Karrip v Cannon Twp, 115 Mich App 726,
733; 321 NW2d 690 (1982).
Thus, plaintiffs must allege
that their members suffered either an actual injury or an
“imminent” injury.
supra.
Lee, supra at 739-740, citing Lujan,
The United States Supreme Court in Friends of the
Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528
US 167, 183; 120 S Ct 693; 145 L Ed 2d 610 (2000), found
“environmental plaintiffs adequately allege injury in fact
when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of
the
area
will
be
lessened’
by
the
challenged
activity”
(citation omitted). The Court continued, contrasting the
allegations with those found insufficient in Lujan and Los
Angeles v Lyons, 461 US 95; 103 S Ct 1660; 75 L Ed 2d 675
(1983) (regarding anticipated use of chokeholds by the
LAPD):
[W]e see nothing “improbable” about the
proposition that a company’s continuous and
pervasive illegal discharges of pollutants into a
river would cause nearby residents to curtail
their recreational use of that waterway and would
subject them to other economic and aesthetic
harms. The proposition is entirely reasonable,
the District Court found it was true in this
case, and that is enough for injury in fact.
[Friends of the Earth, Inc, supra at 184-185,
(emphasis added).]
26
Plaintiffs
here
provided
affidavits
from
three
individuals, members of their organizations who reside near
the mine, who alleged they bird-watched, canoed, bicycled,
hiked, skied, fished, and farmed in the area, they plan to
continue to do so as long as the area remains unspoiled,
and
they
are
“concerned”
that
the
mine
expansion
will
irreparably harm their recreational and aesthetic enjoyment
of the area.
One affiant also alleged that his well, on
property adjacent to the mine, was almost dry and he had to
construct
a
dropping
too
new,
deeper
low.
well
He
due
alleged
defendants’ mining activities.
to
the
this
local
was
aquifer
because
of
These affidavits are nearly
identical to those found adequate in Laidlaw, and we find
they sufficiently meet the test for standing we set forth
in Lee.
However, we note that plaintiffs may not simply rely
on these affidavits throughout the entire proceedings to
prove that standing exists.
Subject matter jurisdiction is
a matter that may be raised at any time.
MCR 2.116(D)(3).
The United States Supreme Court explained the requirements
in Lujan, supra at 561:
The party invoking federal jurisdiction
bears the burden of establishing these elements
[i.e.,
injury
in
fact,
causation,
redressibility].
Since they are not mere
pleading requirements but rather an indispensable
part of the plaintiff’s case, each element must
27
be supported in the same way as any other matter
on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence
required
at
the
successive
stages
of
the
litigation.
At the pleading stage, general
factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion
to dismiss we “presume that general allegations
embrace those specific facts that are necessary
to support the claim.” In response to a summary
judgment motion, however, the plaintiff can no
longer rest on such “mere allegations,” but must
“set forth” by affidavit or other evidence
“specific facts,” which for purposes of the
summary judgment motion will be taken to be true.
And
at
the
final
stage,
those
facts
(if
controverted) must be “supported adequately by
the evidence adduced at trial.”
[Citations
omitted.]
Thus,
a
plaintiff
must
include
in
the
pleadings
“general factual allegations” that injury will result from
the defendant’s conduct.
If the defendant brings a motion
for summary disposition, the plaintiff must further support
the allegations of injury with documentation, just as he
has
to
claim.
support
the
Finally,
other
when
the
allegations
matter
that
comes
to
make
up
his
trial,
the
plaintiff must sufficiently support his claim, including
allegations of injury, to meet his burden of proof.20
20
It was with regard to these last two steps that
Justices Scalia and Thomas dissented from the majority in
Laidlaw.
They would have found that although “[g]eneral
allegations of injury may suffice at the pleading stage, .
. . at summary judgment plaintiffs must set forth ‘specific
facts’ to support their claims.”
Friends of the Earth,
Inc, supra at 198.
28
In this case, the response to defendants’ motion is
met
by
the
Grobbel.
affidavit
of
plaintiff’s
expert,
Christopher
Included in that document is an explanation of
the expected effect on groundwater flow and recharge rate;
effects on stream flow and water quality; and the expected
effects
on
birds,
fish,
and
plants
resulting
planned extensive habitat destruction.
from
the
Grobbel’s affidavit
serves to provide the necessary factual support for the
individuals’ averred injuries.
be
required
at
trial
to
Plaintiffs will, of course,
meet
their
burden
of
proof
regarding the alleged injuries and the alleged effects of
the expansion plans.
Because we hold that plaintiffs have standing without
regard to MCL 324.1701(1), we find it unnecessary to reach
the constitutionality of § 1701(1).
V. Response to Concurrence/Dissents
Justice WEAVER expresses dissatisfaction with the fact
that plaintiffs have been found by the majority to possess
standing
to
pursue
their
MEPA
claims,
but
not
constitutional grounds that she would prefer.
on
the
It seems
that it is not enough that plaintiffs prevail, but that
their victory must be predicated, not upon the resolution
of a mere case or controversy, but upon the constitution
itself.
The majority concludes that it is unnecessary in
29
this case to resolve a constitutional issue where the case
can be fully resolved on nonconstitutional grounds.
Just
as respect for the requirements of standing is an essential
element
of
the
responsible
exercise
power,"
so
too
is
for
respect
of
the
need
constitutional issues only where necessary.
different
Justice
views
WEAVER,
of
standing,
unlike
this
it
is
the
to
the
merits
understandable
majority,
of
our
address
Given its very
would
constitutional question here to be an easy one.
notwithstanding
"judicial
respective
find
why
the
However,
views
on
standing, constitutional issues—whether easy or difficult—
are to be avoided where a case can be resolved adequately
on non-constitutional grounds.21
21
As Justice COOLEY has remarked,
While the courts cannot shun the discussion
of
constitutional
questions
when
fairly
presented, they will not go out of their way to
find such topics. They will not seek to draw in
such weighty matters collaterally, nor on trivial
occasions.
It is both more proper and more
respectful to a coordinate department to discuss
constitutional questions only when that is the
very lis mota.
Thus presented and determined,
the decision carries a weight with it to which no
extra-judicial disquisition is entitled. In any
case, therefore, where a constitutional questions
is
raised,
though
it
may
be
legitimately
presented by the record, yet if the record also
presents some other and clear ground upon which
the court may rest its judgment, and thereby
render the constitutional question immaterial to
the case, the court will take that course, and
(continued . . . .)
30
Several
other
aspects
of
Justice
WEAVER'S
opinion
deserve comment, as does the opinion of Justice KELLY:
(1) Justice WEAVER asserts that, despite Lee, Michigan’s
standing requirement is not constitutional, but rather is
nothing more than “judge-made” law.
Post at 4 n 4.22
It is
hard to know what to make of this dismisssive observation.
Justice WEAVER does not explain why Lee constitutes "judge(continued . . . .)
leave the question of constitutional power to be
passed upon when a case arises which cannot be
otherwise disposed of, and which consequently
renders a decision upon such question necessary.
[Constitutional Limitations, ch 7, § 2 (1868)
(citations omitted).]
See also Weimer v Bunbury, 30 Mich 201, 218 (1874); People
v Quider, 172 Mich 280, 289; 137 NW 546 (1912); J & J
Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722,
733-734; 664 NW2d 728 (2003).
Justice WEAVER characterizes
judicial restraint of the type described by Justice COOLEY,
and honored by judges from time immemorial, as "dodging"
the issue. Post at 30.
22
It is difficult to reconcile Justice WEAVER’S
position that there is no constitutional limitation on what
constitutes the "judicial power" with her concurring
statement in In re Certified Question (Kenneth Henes v
Continental Biomass Industries, Inc), 468 Mich 109, 121;
659 NW2d 597 (2003), in which she asserts that she would
decline to answer a certified question presented in that
case because the court rule pertaining to certified
questions “represents an unconstitutional expansion of
judicial power.”
(Emphasis added.)
She further observed
in Certified Question that, “it is proper to examine the
common-law understanding of ‘judicial power’ in order to
determine . . . the scope of that power . . . . ‘[J]udicial
power’ is ‘the power to hear and determine controversies
between adverse parties, and questions in litigation.’”
(Citations omitted).
On this basis, she then concludes
that the court rule is unconstitutional.
31
made" law any more than any other interpretation of the
constitution, except that she disagrees with Lee.
Whatever
"judge-made" law is, Lee does not constitute "judge-made"
law any more than Marbury v Madison, 5 US (1 Cranch) 137; 2
L Ed 60 (1803); McCulloch v Maryland, 17 US 316; 5 L Ed 579
(1819),
or Brown v Bd of Ed, 347 US 483; 74 S Ct 686; 98 L
Ed 2d 873 (1954).
Constitution,
Some judicial opinions interpreting the
of
course,
may
be
more
persuasive
than
others, but all are presumed to articulate the meaning of
the constitution rather than the personal views of a judge.
In
Lee,
this
Court,
expounding
upon
the
constitutional
status of standing in Michigan, relied upon federal and
state
judicial
precedents,
as
well
as
historical
understandings, and in the instant opinion, we elaborate
upon
this
"judicial
analysis
power"
by
under
looking
the
to
the
meaning
constitution.
of
While
the
Justice
WEAVER is certainly free to disagree with the majority's
analysis, and while there is room for reasonable debate,
the majority's constitutional holding is no more properly
characterized
as
"judge-made"
law
interpretation of the constitution.
"judicial
power,"
protection
of
unusual
the
than
as
what
laws,"
"due
process,"
cannot
32
be
other
What constitutes the
just
punishment,"
any
constitutes
and
determined
"equal
"cruel
and
by
some
mechanical process, but must be given meaning by judges
attempting
those
who
in good faith to understand the intentions of
ratified
these
provisions.
If
constitutional
interpretations with which she disagrees are mere "judgemade"
law,
how
would
the
Justice
WEAVER
characterize
interpretations with which she agrees, perhaps even those
interpretations produced by her own pen?
(2) Justice WEAVER asserts that the majority discussion
of standing is, by virtue of Const 1963, art 4, § 52,
“irrelevant
to
the
important
presented in this case.”
questions
of
Post at 2 n 1.
Michigan
law
Art 4, § 52
states, in part, “The legislature shall provide for the
protection of the air, water and other natural resources of
the
state
from
pollution,
impairment
and
destruction.”
Justice WEAVER contends that, pursuant to this provision,
“the people of Michigan have required that the Legislature
provide for the protection of Michigan’s natural resources.
The
Legislature
properly
acted
in
fulfillment
of
constitutional responsibility through enactment of the
its
MEPA
citizen-suit provision . . .,” and thus any constitutional
standing concerns are irrelevant where
Post at 2.
33
MEPA
is concerned.
What Justice WEAVER overlooks, however, is that there
are many requirements that are imposed upon the Legislature
by the constitution.
For example:
-The
Legislature
"shall
legislation protecting civil rights.
art 1, § 2.
implement"
Const 1963,
-- The Legislature "shall enact" laws to
preserve the integrity of elections. Const 1963,
art 2, § 4.
-- The Legislature "shall implement" the rules
of initiatives and referendums in Michigan.
Const 1963, art 2, § 9.
-- The Legislature "shall further implement"
rules
against
conflicts-of-interests
by
legislators. Const 1963, art 4, § 10.
-- The Legislature "shall implement" the
provisions of the Headlee Amendment pertaining to
tax limitations. Const 1963, art 9, § 34.23
While undoubtedly making clear what some of the priorities
and
obligations
of
government
are,
these
constitutional
provisions do not state that the Legislature may pursue
these goals, as Justice WEAVER implies, by whatever means.
Rather,
it
is
implicit
in
these
provisions
that
the
Legislature is to pursue these goals by appropriate means.
23
See also Const 1963, art 2, § 1; art 4, §§ 12, 15,
51, 53; art 5, §§ 10, 12, 14, 15, 17, 18, 20; art 6, § 25;
art 7, §§ 20, 21, 28; art 8, §§ 2, 4, 7, 9; art 9, §§ 1, 3,
5, 21, 35, 35a; art 10, § 5.
34
The Legislature cannot pursue the objects of these "shall
do"
provisions
by
unconstitutional.
Does
methods
that
Justice
are
otherwise
WEAVER
think
that
the
Legislature is empowered under art 4, § 52 to do anything
at all so long as it is done ostensibly with the goal of
protecting the environment?
in
the
criminal
Can it disregard due process
prosecution
of
environmental
polluters?
Can it disregard the requirements of just compensation in
taking property in order to construct a wilderness area?
Can it ignore the prohibition against ex post facto laws by
criminalizing conduct that was legal at the time it took
place?
Moreover,
can
the
Legislature,
under
art
1,
§
2
(requiring it to implement civil rights laws), expand the
"judicial power" by enacting laws allowing "any person" to
sue for a civil rights violation committed against "any
other person," even if the actual victim chooses not to
sue?
to
Can the Legislature, under art 9, § 34 (requiring it
implement
tax-limitation
provisions),
expand
the
"judicial power" by authorizing "any person" in Monroe or
Hillsdale to sue to prevent a tax increase in Marquette or
Escanaba?
Can the Legislature, under art 2, § 4 (requiring
it to enact election laws), expand the "judicial power" by
authorizing "any person" in Kalamazoo or Battle Creek to
35
sue over ballot disagreements in the Alpena city council
race?
While
clearly
identifying
an
important
priority
of
government, art 4, § 52 does not authorize the Legislature
to
ignore
all
other
provisions
of
the
constitution
enacting laws to protect the environment.
in
At least to
date, the "judicial power" in Michigan has been exercised
only on behalf of plaintiffs who have suffered actual and
particularized injuries.
(3) Justice WEAVER repeatedly asserts that this Court,
in exercising the "judicial power," must act in conformity
with
MEPA.
Post at 4, 6, 22.
fundamentally
branch.
misapprehends
the
In this assertion, she
duties
of
the
judicial
As the Michigan Constitution makes clear, the duty
of the judiciary is to exercise the "judicial power," art
6, § 1, and, in so doing, to respect the separation of
powers, art 3, § 2.
While as a general proposition, the
proper exercise of the "judicial power" will obligate the
judiciary
to
give
Legislature—for
faithful
it
is
the
effect
latter
to
the
that
words
of
the
exercises
the
"legislative power," not the judiciary—such effect cannot
properly
be
constitution
given
when
itself.
to
do
so
Just
as
the
would
contravene
judicial
branch
the
owes
deference to the legislative branch when the "legislative
36
power"
is
being
branch
owe
exercised,
deference
to
so
the
too
does
judicial
the
legislative
branch
exercise of the "judicial power" is implicated.
when
the
Even with
the acquiescence of the legislative and executive branches,
the judicial branch cannot arrogate to itself governmental
authority that is beyond the scope of the "judicial power"
under the constitution.
See Marbury v Madison, supra.
The
"textual" approach of the concurring/dissenting justice is
a
caricatured
textualism,
in
which
the
Legislature
is
empowered to act beyond its authority in conferring powers
upon other branches that are also beyond their authority.24
In
the
final
analysis,
the
constitutional
responsibility of the judiciary is to act in accordance
with the constitution and its system of separated powers,
by
exercising
the
judicial
power
and
only
the
judicial
power.25
24
One
assumes,
for
example,
that
the
concurring/dissenting
justice
would
recognize
the
impropriety of the Legislature purporting to confer
authority upon the executive branch to exercise the
"executive power" to condemn property for a "non-public"
use, see Wayne Co v Hathcock, 471 Mich ___; ___ NW2d ___
(2004), or of the Legislature purporting to exercise the
"legislative power" by pardoning criminals.
25
The
concurring/dissenting
justice's
repeated
references to the "people's mandate" (or the "will of the
people") in MEPA, must, of course, be read in connection
with the ultimate "people's mandate," which is that found
(continued . . . .)
37
(4) Justice WEAVER asserts that the majority’s decision
“overrules 30 years of Michigan case law that held that the
Legislature meant what it said when it allowed ‘any person’
to bring an action in circuit court to protect natural
resources from actual or likely harm.”
Post at 3.
In
support of this proposition, she cites Eyde v Michigan, 393
Mich 453, 454; 225 NW2d 1 (1975), and Ray v Mason Co Drain
Comm’r, 393 Mich 294, 305; 224 NW2d 883 (1975).
However,
neither of these decisions, issued in the aftermath of
passage,
offer
the
slightest
concurrence/dissent's conclusion.
support
for
MEPA’S
the
Unlike the present case,
neither Eyde nor Ray concerned the issue of standing and
neither involved plaintiffs concerning whom there was any
question of standing.
Rather, in Eyde and Ray, this Court
did nothing more than describe, in passing, the substance
(continued . . . .)
in their constitution. There, "we the people" have created
for themselves a government in which, in at least four
separate provisions, they have set forth as clearly as
possible that the boundaries of governmental power are to
be taken seriously.
Const 1963, art 3, § 2; art 4, § 1;
art 5, § 1; art 6, § 1.
Further,
the
concurring/dissenting
justice
seems
considerably less enthusiastic about deferring to the
"people's mandate" in the context of the Sand Dune Mining
Act, see infra at 52-54; Preserve the Dunes v Department of
Environmental Quality, 471 Mich ____, ___; ____ NW2d ____
(2004), in which the "people," through their Legislature,
have also determined that limited mining should be
permitted near Michigan's sand dunes.
38
of the various provisions of the new act.
Such statements
do not even rise to the level of dictum since in neither
Eyde nor Ray did this Court even purport to comment upon
the propriety of the standing provision, much less comment
upon it approvingly.
The statements in Eyde and Ray make
no pretense of being statements of law; they are merely
passing, but accurate, descriptions of what was contained
in
the
new
act.
Because
of
what
these
statements
constituted—mere descriptions of provisions of an act not
then in dispute—it is understandable why neither Eyde nor
Ray
set
forth
provisions,
any
any
analysis
analysis
of
the
of
meaning
their
of
these
constitutional
implications, any analysis of relevant judicial precedents,
and
even
precedents.
any
acknowledgment
of
relevant
judicial
See Smith v Globe Life Ins Co, 460 Mich 446,
461 n 7; 597 NW2d 28 (1999).26
Yet, it is on the basis of
Eyde and Ray that Justice WEAVER identifies "30 years of
Michigan
case
law"
in
support
of
the
proposition
that
matters of standing do not implicate the Constitution.27
26
It is for these same reasons that we find
unpersuasive the additional cases cited by Justice WEAVER in
support of her assertion that the majority is overruling
“30 years of Michigan case law” concerning standing under
MEPA. Post at 3 n 3.
27
justice
Other
references
by
the
concurring/dissenting
to Michigan case-law are equally unavailing in
(continued . . . .)
39
(5) Justice WEAVER accuses the majority of “expand[ing]
the
power
of
the
judiciary
Legislature . . . .”
at
the
Post at 5-6.
reality upon its head.
expense
of
the
This accusation turns
It is akin to saying that President
Washington was expanding his own powers by turning down
congressional
expanding
invitations
its
become
King.
this
powers,
to
Court,
by
Rather
than
questioning
the
authority of the Legislature to confer broader powers upon
it,
and
thereby
to
expand
the
"judicial
power,"
is
resisting an expansion of power—not an everyday occurrence
in the annals of modern government.
By
ensuring
that
the
"judicial
power"
not
be
improperly expanded by the Legislature, and the "executive
power"
not
defending
be
the
improperly
contracted,
constitutional
fashion,
the
United
Madison,
supra,
States
concluded
structure.
Supreme
that
this
a
Court
Court
In
in
congressional
is
similar
Marbury
v
grant
of
(continued . . . .)
support of this conclusion. In Detroit Fire Fighters As’n
v Detroit, 449 Mich 629, 643; 537 NW2d 436 (1995) (RILEY,
J., concurring), for example, only a single justice of this
Court,
in
pure
dictum,
indicated
support
for
the
proposition that that Michigan standing requirements are
based on prudential rather than constitutional concerns.
Post at 10.
House Speaker, supra at 554, is similarly
inapt.
40
authority to the Court to issue writs of mandamus could not
be exercised because the constitution did not allow the
original jurisdiction of that Court to be expanded by mere
statute.
proposition
As
Chief
too
Justice
plain
to
MARSHALL
be
stated,
“It
contested,
that
is
a
the
constitution controls any legislative act repugnant to it."
Id. at 177.
the
“judicial
The Michigan Constitution grants this Court
power”—nothing
more
and
nothing
less—and
neither the Legislature nor this Court itself possess the
authority to redefine these limits.28
28
In at least one respect—in her observation that
"judicial activism can be disguised as judicial restraint,"
post at 32—we agree with the concurring/dissenting justice.
Employing the language of judicial restraint, she would
summarily jettison in the name of an (understandably)
popular cause one of the most enduring bulwarks against
judicial
activism,
the
requirement
of
standing—the
requirement that that courts decide only actual cases and
controversies between real parties with genuinely adverse
interests.
By dismantling this historical constraint upon
the courts, she would allow the judicial branch—the least
accountable and least representative branch of government—
to become potentially involved in a sharply expanded range
of public policy disputes.
To many Americans of a wide
range of political and jurisprudential views, this would
exacerbate the recent trend in which the constitutional
equilibrium between the judiciary, and the other branches
of government, has become increasingly imbalanced and
distorted in favor of the former.
The majority would restrict the judiciary to its
traditional
role
of
resolving
actual
cases
and
controversies.
The
concurring/dissenting
justice
potentially would allow any person opposed to some aspect
of governmental policy, i.e., most persons, to sue in order
(continued . . . .)
41
(6) In attempting to understand Justice KELLY'S opinion,
it is important to recognize that she takes great care to
proclaim,
post
at
2
n
1,
that,
despite
all
appearances, she is not "en toto" overruling Lee.
effect
of
this
analysis
on
the
part
of
the
contrary
The
concurring
justice is to allow her to enjoy the freedom to discard
traditional principles of standing when it is useful to do
so, as in this case, and then to reassert such principles,
per
Lee,
when
that
is
equally
useful.
The
concurring
justice's decisionmaking is standardless and inconsistent
with a predictable rule of law.29
(continued . . . .)
to
substitute
their
personal
preferences
of
what
governmental policy ought to be for the policies actually
produced by the representative processes of government.
The concurring/dissenting justice would take advantage of
the
relative
lack
of
public
understanding
of
how
traditional standing precepts maintain the constitutional
separation of powers to self-characterize her position as
one of "judicial restraint," notwithstanding her support
for eliminating one of the fundamental underpinnings of
genuine judicial restraint.
Almost certainly, if the
concurring/dissenting justice's position on standing were
ever to prevail in Michigan, or nationally, the judicial
branch of government would quickly become a far more
dominant force, and the representative and accountable
branches of government would become far less relevant.
29
Doubtless in the next case—or at least in the next
case in which she is less enthusiastic about "any person"
suing "any person" for anything at all—the concurring
justice will opine that, unlike in the instant case, the
plaintiffs in that case do not have the same "strong
personal manifestations, called 'passive use' or 'standby
value' interests," post at 17, that will ensure the same
(continued . . . .)
42
(7)
Justice
KELLY
sets
forth
a
torrent
of
novel
constitutional propositions in her opinion whose principal
purpose
apparently
traditional
is
principles
to
of
justify
standing
the
abandonment
("to
open
wide
of
the
courthouse doors")—at least in the realm of environmental
law.
The people will have to wait to see whether the
concurring
justice
is
as
amenable
standing in other areas of the law.
to
the
abolition
of
A few of the more
creative propositions of constitutional law that inhabit
her opinion:
-- The "judicial power," although it may
require an individualized injury in order to
bring a federal lawsuit, does not require the
same to bring a state lawsuit.
Post at 10-11.
Although Justice KELLY correctly remarks upon the
differing nature of the federal and state
governments, she fails to demonstrate why these
differences have any relevance at all for her
conclusion that the "judicial power" should be
understood differently within these systems.
-- The subject-matter jurisdiction of state
courts is "plenary," and, therefore, the state
"judicial power" is "plenary."
Post at 11-12.
That there may be plenary state authority "to
address any social problem that threatens the
public welfare" does not mean that the "judicial
power" encompasses all such authority.
Id. at
11.
(continued . . . .)
"sincere and vigorous" advocacy as here. "These interests
ensure that environmental suits are vigorously pursued by
people with a strong personal belief in their claim." Id.
at 17.
43
-- The "people" only have the power to
"execute" the environmental laws when they are
permitted to sue in court. Post at 5. One might
have thought that it was the executive branch's
responsibility to "execute" the laws, and that
they did so on behalf of the "people."
-- The gist of the separation of powers
principle, rather than to limit the exercise of
governmental
power
by
allocating
specific
responsibilities among the three branches of
government, is
to ensure that "one individual
may not simultaneously hold office in more than
one branch of government."
Post at 8, n 6.
Thereby, the concurring justice would transform
one of the pillars of our system of limited,
constitutional
government
into
the
trivial
(albeit probably correct) proposition that a
legislator cannot at the same time serve as
Director of the Department of Community Health.
-- The Michigan Constitution allows the
"judicial power" to be exercised over all
"disputes,"
and
not
merely
"cases"
or
"controversies."
Post at 14-15. Aside from the
fact
that
the
concurring
justice
affords
absolutely no guidance on what constitutes a
"dispute" or how it differs from a "case" or
controversy"—although clearly it does, in her
mind—she invokes no constitutional language, no
constitutional history and no constitutional
precedent for this blithe assertion.
Indeed, in
view of the fact that the Constitution apparently
does not address standing at all from her
perspective, why is even so much as a "dispute"
required?
-- An effective substitute for the doctrine
of standing are the doctrines of ripeness and
mootness. Post at 15.
-- The state "judicial power" is different
in kind from the federal "judicial power" because
the latter alone applies to federal questions and
diversity cases. Post at 12. This is simply one
more non sequitur in the concurring opinion in
search of relevance.
44
-- Federal and state standing requirements
are a function of the methods by which judges are
selected in these systems.
Post at 12-13.
"Everything considered, it is not surprising that
the qualifications for standing in state courts
are broader than in federal courts." Id. at 13.
We are aware of nothing in their method of
selection
that
justifies
state
judges
in
exercising the "judicial power" according to
different rules and constraints than federal
judges.
-- This Court, although it is barred from
viewing standing as an issue of constitutional
dimension, may nonetheless, in the face of a
contrary legislative provision, "constrain its
own power and limit standing . . . ."
Post at
19.
That is, a court may not countermand the
words of the Legislature on the basis of the
constitution, but it may do so on the basis of
its
own discretion as
to when words should be
ignored.
-- An institution of government is "illadvised to curb its [own] authority under the
guise
of
respect
for
another
branch
of
government."
Post at 20.
"Ill-advised,"
perhaps,
in
an
era
in
which
governmental
institutions are expected to accrete as much
power as possible; not so "ill-advised" if their
premise is to act within the scope of their
constitutional charter.
-- Separation of powers principles "require"
that the judiciary "respect" the Legislature's
decision. Post at 20. True, although only up to
a point.
At least since Marbury v Madison
anyway, the judiciary is also "required" to
"respect" the constitution's decisions.
(8) Justice KELLY argues that the separation of powers
provision of the Michigan Constitution should not be read
in
an
"overly
rigid"
fashion.
This
is
essentially
a
euphemism for the proposition that this provision should
45
not be read to mean very much of anything at all.
hardly
an
"overly
person
rigid"
exercising
powers
reading
to
of
branch
one
suggest
It is
that,
shall
"No
exercise
powers properly belonging to another branch" means that a
judge is limited to exercising the "judicial power," and
not the powers of another branch.
This is made explicit in
art 6, § 1.30
Moreover,
separation
of
Justice
powers
is
KELLY'S
understanding
confused,
as
of
reflected
in
the
her
citation of the dissenting opinions in Judicial Attorneys
Assoc v Michigan, 459 Mich 291, 307; 586 NW2d 894 (1998);
228
Mich
App
386,
427;
579
NW2d
378
(1998),
for
the
proposition that the "separation of powers doctrine allows
limited
Post
at
overlap
9.
Of
and
interaction
course,
in
between
pursuit
of
the
branches."
their
distinct
constitutional powers, it will often be the case that the
exercise of separated powers overlaps.
For example, it may
be that the Legislature in exercising its legislative power
to enact laws and appropriate monies will sometimes come
into conflict with the Governor in exercising her executive
30
Indeed, the fact that Justice KELLY feels impelled to
articulate her "flexible" understanding of the separation
of powers provision in the first place suggests an
awareness that the imposition upon the judiciary of a duty
to resolve non-cases and non-controversies exceeds the
traditional "judicial power."
46
power
to
Although
executive
does.
recommend
the
or
branches
do
laws
powers
separated
veto
of
not
overlap,
and
the
appropriations.
legislative
their
exercise
and
often
The separate and distinct constitutional powers of
two branches may be focused on the same subject areas and
the operations of state government may occasionally involve
a blending of governmental operations as, for example, in
the
interaction
between
the
legislative
and
executive
branches regarding the drafting of a law or the preparation
of a budget.
But this is distinct from a blending of
powers or functions.
However much cooperation there is
between the branches, the Legislature exercises only the
legislative
executive
power
power.
and
the
While
executive
the
exercise
exercises
of
only
such
the
separated
powers may often overlap—this being understood generally as
the realm of checks and balances—there is no "sharing" of
the
legislative
or
executive
powers.
There
is
only
a
sharing of the sum of all state governmental power.
(9) Justice KELLY makes much of the concepts of citizen
suits and private attorneys general, yet fails to note that
the history of such suits indicates that they have been
brought only by individuals who have suffered an injury.
This understanding continues today.
47
Justice KELLY correctly notes that "citizen suits" have
a
long
pedigree
in
informers’ actions.
English
history
through
relator
and
She fails to explain, however, that
those who brought such actions were not strangers to the
action, but possessed standing themselves either through a
direct
injury
or
through
government’s injury in fact.
the
assignation
of
the
The historical use of such
actions was explained by the US Supreme Court in Vermont
Agency of Natural Resources v United States, 529 US 765,
774-777; 120 S Ct 1858; 146 L Ed 2d 836 (2000), using the
label “qui tam” actions:
Qui tam actions appear to have originated
around the end of the 13th century, when private
individuals
who
had
suffered
injury
began
bringing actions in the royal courts on both
their own and the Crown's behalf. See, e.g.,
Prior of Lewes v De Holt (1300), reprinted in 48
Selden Society 198 (1931).
Suit in this dual
capacity was a device for getting their private
claims into the respected royal courts, which
generally entertained only matters involving the
Crown's interests.
See Milsom, Trespass from
Henry III to Edward III, Part III: More Special
Writs and Conclusions, 74 L Q Rev 561, 585
(1958).
Starting in the 14th century, as the
royal courts began to extend jurisdiction to
suits
involving
wholly
private
wrongs,
the
common-law qui tam action gradually fell into
disuse, although it seems to have remained
technically available for several centuries. See
2 W Hawkins, Pleas of the Crown 369 (8th ed.
1824).
At about the same time, however, Parliament
began enacting statutes that explicitly provided
for qui tam suits [which] allowed injured parties
to sue in vindication of their own interests (as
48
well
as
Providing
Pursued in
11 (1400).
the
Crown's),
see,
e.g.,
Statute
a Remedy for Him Who Is Wrongfully
the Court of Admiralty, 2 Hen. IV, ch.
[Emphasis added.]
Accordingly,
the
Court
held
that
one
who
brings
a
relator suit has standing because he is the assignee of a
claim and may assert the injury-in-fact suffered by the
assignor, which is normally the government.
Id. at 773.
In
government’s
such
cases,
injury-in-fact
the
Court
suffices
concluded,
to
confer
individual relators bringing the suit.
Similarly,
a
review
of
modern
the
standing
on
the
Id. at 774.
citizen
suit
cases
almost always includes a review of standing in addition to
a review of the statute that confers the right to such
suits.
See, e.g., Gwaltney of Smithfield, Ltd v Chesapeake
Bay Foundation, 484 US 49, 65-66; 108 S Ct 376; 98 L Ed 2d
306 (1987).
Further, like citizen suits, suits by private
attorneys general do not involve those completely divorced
from
an
injury;
rather,
they
involve
those
who
have
suffered an injury—generally “noneconomic” injuries—and who
have been provided an incentive by the legislature to bring
a lawsuit to advance the public interest.
See Middlesex Co
Sewerage Authority v Nat’l Sea Clammers Assoc, 453 US 1,
17; 101 S Ct 2615; 69 L Ed 2d 435 (1981).
As the United
States Supreme Court noted, the point of the doctrine is
that
“directly
injured
victims
49
can
be
counted
on
to
vindicate the law as private attorneys general, without any
of the problems attendant upon suits by plaintiffs injured
more remotely”.
Holmes v Securities Investor Protection
Corp, 503 US 258, 269-270; 112 S Ct 1311; 117 L Ed 2d 532
(1992) (emphasis added).
Therefore, contrary to Justice KELLY’S assertions, the
use
of
citizen
suits
or
actions
by
private
attorneys
general does not undermine the application of traditional
standing requirements.
If anything, the use of such suits
supports the application of those requirements, as citizen
suits and actions by private attorneys general have always
been
grounded
in
a
private
injury,
whether
suffered
directly or as a result of an assignment by another.
(10) Justice WEAVER, referencing this Court’s decision
in
Preserve
the
Dunes
v
Department
of
Environmental
Quality, 471 Mich ____; ____ NW2d ____ (2004), derides the
majority
for
term.”
Post
having
at
33
“unleashed
n
31.31
31
an
assault
However,
the
on
MEPA
legal
this
issue
Justice KELLY makes a similarly inappropriate, and
irrelevant, connection between these cases in Preserve the
Dunes, supra at 2, asserting that, despite the very
different legal issues involved in these cases, and despite
the fact that we reach no conclusion at all about the
meaning of MEPA in the instant case, that our holdings
"compound" one another.
Only, perhaps, in the sense that
the concurring justice's decisions in entirely unrelated
(continued . . . .)
50
addressed
in
Preserve
the
Dunes
has
utterly
nothing
in
common with the legal issue addressed in this decision, and
to rhetorically equate these decisions merely because they
both
implicate
an
environmental
legal
analysis
on
the
less
a
concurring/dissenting
justice than a political statement.
It is this Court's
constitution,
legislative
unpopular.
simply
not
to
to
cause
of
suggests
the
responsibility
part
statute
uphold
promote
or
or
the
impede
interest,
law
any
however
and
the
particular
popular
or
Rather, the obligation of this Court is simply
to say what the law is.
And that is exactly what the
justices in the majority have sought to do in this case, as
they have each sought to do—however imperfectly—in every
case coming before this Court.
The
majority
cannot
read
the
concurring/dissenting
justice's conflation of wholly unrelated legal issues in a
single derisive volley as anything other than implying that
this
Court
has
some
obligation
to
decide
issues with an eye toward their results.32
environmental
However, that
(continued . . . .)
criminal cases, involving entirely different legal issues,
"compound" one another.
32
In the interest of perspective, we note once more
that the majority has found that the plaintiffs in this
case—environmental plaintiffs—possess standing to pursue
their cause of action.
They have prevailed.
In
(continued . . . .)
51
the issue of standing has arisen here in the context of
is,
from
the
irrelevant.
perspective
of
the
majority,
MEPA
utterly
The majority would be addressing this critical
constitutional issue in identical terms if it had arisen in
any other subject area of the law, and it would be no more
of an "assault upon
"assault upon
MEPA"
than the present decision is an
MEPA."
Further, in the other case referenced, Preserve the
Dunes,
in
which
"assaulted
MEPA,"
this
this
same
majority
Court
specific legal question—whether
action
to
challenge
the
has
also
the
addressed
MEPA
allegedly
following
authorizes a collateral
Department
of
Environmental
Quality's decision to issue a permit under the Sand Dune
Mining
Act,
MCL
324.63701,
enacted
by
the
Legislature,
where that collateral action seeks to challenge flaws in
the
permitting
involved
has
process
polluted,
unrelated
or
will
to
whether
likely
the
conduct
pollute
natural
resources.
We can only invite the reader of the instant
opinion
also
to
read
Preserve
the
Dunes
to
whether that opinion represents an "assault on
determine
MEPA,"
or
(continued . . . .)
identifying such standing, however, the majority has found
it to exist under traditional precepts of standing and has
avoided the resolution of a constitutional issue that it
need not prematurely address. See n 21.
52
instead
an
honest
and
impartial
effort
to
resolve
the
limited question of statutory interpretation presented in
that case.
Justice WEAVER'S "assault on
more
groundless
when
one
MEPA"
rhetoric becomes even
recognizes
that
she
is
dissatisfied with the majority for having concluded that it
is unnecessary to interpret
MEPA
present standing controversy.
at all in resolving the
Instead, we conclude that
plaintiffs possess standing on traditional grounds.
in
the
end,
the
majority's
"assault
upon
MEPA"
merely to the majority refraining from interpreting
Thus,
amounts
33
MEPA.
VII. CONCLUSION
In
resolve
addressing
today,
an
issue
Justices
that
WEAVER
and
the
majority
KELLY
would
does
not
allow
the
Legislature to grant plaintiffs standing in environmental
lawsuits,
suffered.
regardless
of
whether
any
injury
has
been
Under this view of the "judicial power," "any
person," for example, could seek to enjoin "any person"
from mowing his lawn with a gas-powered mower because such
activity allegedly creates air pollution and uses fossil
33
Despite characterizing the majority's discussion on
standing in section III as "simply dicta," post at 3, a
point with which we agree, Justice Kelly simultaneously,
and perplexingly, concludes that this case "stands for the
proposition" addressed in this section. Id. at 2.
53
fuels when other alternatives are available.
"Any person"
could sue "any person" for using too much fertilizer on his
property, or allowing too much runoff from a feedlot on his
property.
"Any person" could sue "any person" from using
excessive amounts of pesticides in his home or garden or
farm.
"Any person" could sue "any person" for improperly
disposing of used petroleum-based oils.
"Any person" could
sue "any person" for improper backyard grilling practices,
excessive
use
of
aerosol
sprays
and
propellants,
or
wasteful lawn watering.34
We
can
only
assume
that
the
concurring/dissenting
justices' casualness about eliminating traditional rules of
standing suggests that they are not fully aware of the
world that they would create.
It is a world in which any
conduct allegedly affecting the environment might result in
litigation
aggrieved.
if
anyone,
The
anywhere,
potential
34
for
for
any
abuse
reason,
under
felt
such
a
In response to Justice WEAVER's assertion that,
"[a]fter more than 30 years, MEPA has not spawned an
unmanageable stream of citizen-suits . . .," post at 28. n
30, the majority simply reiterates that there has never
been a decision of this Court holding under MEPA that "any
person" could sue "any person."
In response to Justice
KELLY, the majority simply notes that it is underwhelmed by
the purported safeguards that she identifies to what she
characterizes as our "parade of horribles." Id. at 20. It
is fortunate for the people of Michigan that, at least for
the time being, their freedoms and fortunes will not be
dependent upon such "safeguards."
54
circumstance explains at least one of the practical reasons
why the enforcement of regulatory laws has generally been
limited to officers of the executive branch, and why, from
time immemorial, standing has required an individualized
injury
on
the
part
of
a
plaintiff.
The
concurring/dissenting justices would replace the judgment
and discretion of the executive branch with an enhanced
regime of lawsuits, a regime in which judges increasingly
substitute their own views for those of the Governor, the
Attorney General, and their appointees.
This Court reaffirms Lee and concludes that, under the
circumstances of this case, plaintiffs, on behalf of their
members, possess standing to pursue the instant cause of
action.
Appeals
Thus, we affirm the decision of the Court of
and
remand
to
the
trial
court
for
proceedings
consistent with this opinion.
Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
55
S T A T E
O F
M I C H I G A N
SUPREME COURT
NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA ENVIRONMENTAL
COUNCIL,
Plaintiffs-Appellees,
v
No. 121890
CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP,
Defendants-Appellants,
and
MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSELL J. HARDING, Director
of the Michigan Department of
Environmental Quality,
Defendant-Appellee
_______________________________
WEAVER, J. (concurring in result only).
I concur in only the result of the majority opinion.
I
would
hold
that
plaintiffs
have
standing
under
MCL
324.1701(1) of the Michigan environmental protection act
(MEPA) to bring an action to enjoin mining activities that
plaintiffs allege will irreparably harm natural resources.
I dissent from the majority’s analysis of “standing”
and “judicial power” because this analysis utterly ignores
the will of the people of Michigan expressed in art 4, § 52
of our Constitution that
[t]he conservation and development of the natural
resources of the state are hereby declared to be
of paramount public concern in the interest of
the health, safety and general welfare of the
people.
The legislature shall provide for the
protection of the air, water and other natural
resources of the state from pollution, impairment
and destruction.[1]
Pursuant to this constitutional provision, the people
of Michigan have required that the Legislature provide for
the
protection
Legislature
of
Michigan’s
properly
acted
natural
in
resources.
fulfillment
of
The
its
constitutional responsibility2 through enactment of MEPA’s
citizen-suit provision that provides:
The attorney general or any person may
maintain an action in the circuit court having
jurisdiction where the alleged violation occurred
or is likely to occur for declaratory and
equitable relief against any person for the
protection of the air, water, and other natural
resources and the public trust in these resources
1
The majority ignores the constitutional mandate of
art 4, § 52 and attempts to distract the reader with a
discussion of federal standing and federal judicial power,
a discussion that is irrelevant to the important questions
of Michigan law presented in this case.
2
As previously recognized by this Court, “Michigan’s
Environmental
Protection
Act
marks
the
Legislature’s
response
to
our
constitutional
commitment
to
the
‘conservation and development of the natural resources of
the state.’”
Ray v Mason Co Drain Comm’r, 393 Mich 294,
304; 224 NW2d 883 (1975) (quoting Const 1963, art 4, § 52).
2
from pollution, impairment, or destruction.
324.1701(1)(emphasis added).]
The
majority
disregards
the
intent
of
the
[MCL
Legislature,
erodes the people’s constitutional mandate, and overrules
30
years
of
Michigan
case
law
that
held
that
the
Legislature meant what it said when it allowed “any person”
to bring an action in circuit court to protect natural
resources from actual or likely harm.3
In
this
case,
this
Court
specifically
asked
the
question whether the Legislature may confer standing under
MCL 324.1701(1) of MEPA on persons who do not satisfy the
judicial test for standing articulated by Lee v Macomb Co
Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001).
majority
purports
to
not
decide
this
question,
but
The
it
clearly implies that the Legislature’s attempt to confer
3
Five years after MEPA was enacted, this Court said
that MEPA “provides private individuals and other legal
entities with standing to maintain actions in the circuit
court” to protect natural resources.
Ray, supra at 304305.
That MEPA grants standing to “any person” has been
unquestioned for over 30 years. See also, Eyde v State of
Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975), West
Michigan Environmental Action Council v Natural Resources
Comm, 405 Mich 741; 275 NW2d 538 (1979), Kimberly Hills
Neighborhood Ass’n v Dion, 114 Mich App 495; 320 NW2d
(1982), Trout Unlimited Muskegon White River Chapter v
White Cloud, 195 Mich App 343; 489 NW2d 188 (1992), Nemeth
v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641 (1998).
3
standing more broadly than Lee in MEPA or any other statute
is unconstitutional.
Fortunately
for
the
plaintiffs
in
this
case
the
majority concludes that the plaintiffs have standing under
the judge-made test articulated in Lee.4
In so holding, the
majority purports to exercise judicial restraint, asserting
that it is preserving the “separation of powers” by not
exercising the ”power” conferred upon it by the Legislature
under MEPA and applying Lee’s restrictive standing test to
these MEPA plaintiffs.
MEPA
empowered
the
This assertion is untrue because
people
to
help
protect
the
state’s
4
The majority cannot seriously dispute, ante at 25 n
19 and 32-33, that Lee is a “judge-made” standing test.
Lee
“supplemented”
Michigan’s
previously
prudential
standing test with a test derived from federal law
interpreting a federal constitutional provision that does
not apply to the state.
Neither the framers nor the
ratifiers of the 1963 Constitution, when considering the
power of the Michigan judiciary, would have anticipated
supplementing Michigan’s prudential standing doctrine with
the constraints imported by Lee from art III of the federal
constitution.
As defined in 1 Cooley, Constitutional
Limitations (8th ed) at 125, n 1:
“Judge-made law”, as the phrase is here
employed, is that made by judicial decision which
construe away the meanings of statutes, or find
meanings in them the legislature never held. The
phrase is sometimes used as meaning, simply, the
law that becomes established by precedent.
Judges can as easily and with as little restraint find
new meanings in constitutions that the ratifiers never
intended as they can find new meanings in statutes.
This
is precisely the effect of the majority’s decision in Lee.
4
natural resources, not the courts, and because the majority
has in fact laid out its position on the constitutional
question.
Though camouflaged by the correct result, it is
clear that the majority would hold that the Legislature may
not grant standing more broadly than Lee.
The majority can
wait for a future case that has not drawn public attention5
to
openly
and
directly
declare
the
MEPA
citizen-suit
standing provision unconstitutional.
The majority’s application of Lee’s judicial standing
test to these plaintiffs imposes unprecedented, judge-made
restrictions on MEPA plaintiffs’ access to the courts.
The
majority’s decision overrules without discussion 30 years
of precedent, imposes on all future MEPA plaintiffs the
burden of establishing standing under the restrictive test
of Lee, and undermines the people’s mandate expressed by
5
This case has generated considerable and justifiable
concern regarding whether this Court would uphold the
Legislature’s grant of standing that authorizes “any
person,” MCL 324.1701(1), to sue to protect the environment
or whether the Court would declare such legislatively
conferred
standing
unconstitutional
by
extending
the
rationale of Lee.
Note that the State Attorney General’s
office
on
behalf
of
the
Michigan
Department
of
Environmental Quality, appellee before this Court, argues
that the Michigan Legislature may grant standing to persons
who do not meet the Lee standing test. Included among the
many amicus opposing the extension of Lee is William G.
Milliken, the Governor of Michigan who signed MEPA into
law. Apparently, the executive branch has not and does not
share the majority’s fear of MEPA citizen-suits.
5
Const 1963, art 4, § 52 that the Legislature provide for
the
protection
of
Michigan’s
natural
resources.
While
pretending to limit its “judicial power,” the majority’s
application of Lee’s judicial standing test in this case
actually expands the power of the judiciary at the expense
of
the
Legislature
by
undermining
the
Legislature’s
constitutional authority to enact laws that protect natural
resources.
The
majority’s
failure
to
adhere
to
MEPA’s
“any
person” standard will have far-reaching consequences and
will affect plaintiffs’ access to courts in more than just
the environmental arena.
For example, while resolving the
case on other grounds, the Court of Appeals in Cuson v
Tallmadge
Charter
Twp,
unpublished
opinion
per
curiam,
issued May 15, 2003 (Docket No. 234157), applied Lee to
note that plaintiffs did not have standing under Lee to
enjoin
future
15.261 et seq.
violations
of
the
Open
Meetings
Act,
MCL
The panel did not address § 11(1) of that
Open Meetings Act, which provides:
If a public body is not complying with this
act, the attorney general, prosecuting attorney
in which the public body serves, or a person may
commence a civil action to compel compliance or
6
to enjoin further noncompliance with this act.
[Emphasis added.][6]
Thus, it cannot be denied that this case concerns more than
the people’s constitutional mandate that the Legislature
protect
the
environment
and
the
Legislature’s
through MEPA’s citizen-suit provision to do so.
attempt
It also
concerns every statutory grant of standing that is broader
than Lee’s standing test.7
Consequently,
while
I
concur
with
the
majority’s
conclusion that the plaintiffs have standing to bring this
action, I dissent from the majority’s imposition of Lee’s
judicial standing test in this case.
with
the
majority’s
inappropriate
Further, I disagree
suggestion,
in
its
reliance on inapplicable federal law, that the plaintiffs’
victory may be short-lived.
Ante at 28 and 29 n 20.
6
On
Also see People v Van Turbbergen, 249 Mich App 354;
642 NW2d 368 (2002) the prosecution raised Lee to suggest
that a criminal defendant did not have standing to
challenge his arrest as being without legal authority
and
Otsego Co Rural Alliance, Inc v Bagley Twp, unpublished
opinion per curiam of the Court of Appeals, issued June 19,
2003 (Docket No. 237277), in which the Court held that
plaintiffs did not have standing under Lee to challenge the
defendant’s
establishment
of
a
Downtown
Development
Authority or a referendum by which the voters approved a
contract between defendant and a utilities authority
established by defendant and another township.
7
See ante at 43.
7
remand, the parties’ burdens of proof are well-established
under MEPA.
I would conclude that the Michigan Legislature has the
constitutional authority to create a cause of action and to
confer standing on any person without this Supreme Court’s
interference through judge-made standing tests.
I would
further conclude that the Legislature did expressly confer
standing on “any person” under MCL 324.1701(1).
Therefore,
I would hold that plaintiffs have standing pursuant to MCL
324.1701(1) of MEPA.
I.
In
this
case
FACTS
plaintiffs,
the
National
Wildlife
Federation and the Upper Peninsula Environmental Coalition,
seek to enjoin defendants, Cleveland Cliffs Iron Company
and Empire Iron Mining Partnership, from proceeding under a
permit
issued
in
August
2000
by
the
Department
of
Environmental Quality. Plaintiffs allege that the expansion
of iron ore mining activities proposed under the permit
will irreparably harm wetlands and streams.
II.
MEPA
The people of Michigan through the 1963 Constitution
expressly
directed
the
Legislature
protection of the environment.
8
to
provide
for
the
The Constitution provides:
The conservation and development of the
natural resources of the state are hereby
declared to be of paramount public concern in the
interest of the health, safety and general
welfare of the people.
The legislature shall
provide for the protection of the air, water and
other natural resources of the state from
pollution, impairment and destruction. [1963
Const 1963, art 4, § 52.]
As
part
of
its
fulfillment
of
this
mandatory
constitutional duty, the Legislature enacted the Michigan
environmental
protection
act
(MEPA).
State
Hwy
Comm
v
Vanderkloot, 392 Mich 159, 183; 220 NW2d 416 (1974).8
Having
proved
to
determined
be
that
diligent
“[n]ot
and
dedicated
environment,” the Legislature through
sizable
share
enforcement
of
for
the
that
affected——the public.”
every
initiative
segment
of
public
defenders
agency
of
the
MEPA “has provided a
for
environmental
society
most
law
directly
Ray, supra at 305, and Eyde, supra.
As this Court previously noted, this citizen-suit provision
of MEPA “signals a dramatic change from the practice where
the
important
task
of
environmental
law
enforcement
was
left to administrative agencies without the opportunity for
8
MEPA is codified as part 17 of the natural resources
and environment act, MCL 324.101 et seq.
9
participation of individuals or groups of citizens.”
Ray,
supra at 305.
MEPA
broadly
defines
who
can
sue
to
protect
the
environment by providing:
The attorney general or any person[9] may
maintain an action in the circuit court having
jurisdiction where the alleged violation occurred
or is likely to occur for declaratory and
equitable relief against any person for the
protection of the air, water, and other natural
resources and the public trust in these resources
from pollution, impairment, or destruction. [MCL
324.1701(1)(emphasis added).]
This Court has explained that MEPA creates “an independent
cause of action, granting standing to private individuals
to maintain actions in circuit court for declaratory and
other equitable relief against anyone for the protection of
Michigan’s environment.” Eyde, supra at 454.
Indeed, this
Court has held that this language confers standing on “any
person.”
Ray, supra 304-305.
9
The definition of “person” in the Natural Resources
and Environmental Protection Act, of which MEPA is a part
applies throughout the act.
MCL 324.301(g) of the act
defines
“person”
as
“an
individual,
partnership,
corporation, association, governmental entity, or other
legal entity.”
10
III.
Michigan’s Judicial Standing Test
Without standing, a court will not hear a person’s
complaint — the doors to the court are closed.
other
substantive
standing
rules
rules
focus
governing
on
the
access
person
rather than the claim itself.10
to
the
bringing
Unlike
courts,
the
claim
“Whether a party has a
sufficient stake in an otherwise justiciable controversy to
obtain judicial resolution of that controversy is what has
traditionally been referred to as the question of standing
to sue.”
Sierra Club v Morton, 405 US 727, 731-732; 925 S
Ct 1361; 31 L Ed 2d 636 (1972).
In
focused
concerns.
Michigan,
on
the
prudential,
judicial
as
test
opposed
for
to
standing
has
constitutional,
Lee, supra at 743 (WEAVER, J. concurring); Detroit
Fire Fighters Ass’n v Detroit, 449 Mich 629, 643; 537 NW2d
436 (1995) (RILEY, J. concurring).11
Prudential concerns are
10
In Flast v Cohen, 392 US 83, 102; 88 S Ct 1942; 20 L
Ed 2d 947 (1968), the Court noted “in ruling on standing,
it is both appropriate and necessary to look to the
substantive issues . . . to determine whether there is a
logical nexus between the status asserted and the claim
sought to be adjudicated.”
11
No Michigan case decided before Lee held that
standing to sue in Michigan courts is a Michigan or federal
constitutional question as opposed to a prudential concern.
Thus the majority’s allegiance to Lee is not allegiance to
“traditional grounds” for standing. See ante at 53.
11
essentially “matters of judicial self-governance. . . .”
Warth v Seldin, 422 US 490, 500; 95 S Ct 2197; 45 L Ed 2d
343 (1975).
Before Michigan courts will hear a case, they
consider whether “a party’s interest in the outcome of the
litigation
.
.
.
will
ensure
advocacy.”
House Speaker v State Admin Bd, 441 Mich 547,
554; 495 NW 2d 539 (1993).
whether
the
plaintiff’s
plaintiff
substantial
sincere
and
vigorous
The courts further consider
has
demonstrated
interest
will
be
that
“the
detrimentally
affected in a manner distinct from the citizenry at large.”
Id.
In
developing
prudential
standing
rules,
Michigan
courts have often drawn from federal case law discussing
prudential standing requirements.
Id. at 559.
Yet the
federal courts are bound not only by judicially imposed
prudential
considerations,
but
also
by
federal
constitutional limitations on standing imposed by article
III of the federal constitution.12
12
Warth, supra at 498.
The first mention of standing as an article III
limitation was in Stark v Wickard, 321 US 288; 64 SCt 559;
88 L Ed 733 (1944).
See Sunstein, What’s Standing After
Lujan? Of Citizens Suits, “Injuries,” and Article III, 91
Mich L R 163, 169 (1992).
The majority’s assertion that
the founding fathers had the specific concept of standing
in mind when enumerating the powers of the federal
judiciary through article III is pure speculation.
12
Federal
constitutional
standing
limitations
involve
“whether the plaintiff has made out a ‘case or controversy’
between himself and the defendant within the meaning of
article III of the United States Constitution.”
Id. at
498.13
The United States Supreme Court has made clear that
article
seeks
III-based
to
constraints
invoke
federal
apply
court
to
every
jurisdiction.
person
who
Bennett
v
Spear, 520 US 154, 162; 117 S Ct 1154; 137 L Ed 2d 281
(1997).
made
However, the United States Supreme Court has also
clear
that
distinguishable
because
13
article
from
prudential
III-based
federal
constraints
constraints
prudential
can
be
constraints,
“modified
Art III, § 2 provides in part:
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their
authority;—to
all
cases
affecting
Ambassadors, other public Ministers and Consuls;—
to
all
Cases
of
admiralty
and
maritime
Jurisdiction;—to
Controversies
to
which
the
United States shall be a Party;-to Controversies
between two or more States;—between a State and
Citizens of another State;—between Citizens of
different States,—between Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens
thereof,
and
foreign
States,
Citizens
or
Subjects.
13
are
or
abrogated by Congress . . . .”
Id.14
Before Lujan, supra,
the United States Supreme Court described the difference
between
federal
constitutional
and
federal
prudential
constraints on standing in Sierra Club, supra at 732:
Where the party does not rely on any
specific statute authorizing invocation of the
judicial
process,
the
question
of
standing
depends upon whether the party has alleged such a
“personal
stake
in
the
outcome
of
the
controversy,” Baker v. Carr, 369 US 186, 204 [825
S Ct 691; 7 L Ed 2d 663 (1962)], as to ensure
that “the dispute sought to be adjudicated will
be presented in an adversary context and in a
form historically viewed as capable of judicial
resolution.”
Flast v Cohen, 392 US 83, 101.
Where, however, Congress has authorized public
officials to perform certain functions according
to law, and has provided by statute for judicial
review
of
those
actions
under
certain
circumstances, the inquiry as to standing must
begin with a determination of whether the statute
in question authorizes review at the behest of
the plaintiff.
There has never been a federal case applying article
III’s
case
or
state courts.
controversy
based
standing
constraints
to
As noted by Justice Kennedy writing for the
14
Addressing
the
legislative
standing
vis-a-vis
federal prudential standing constraints, Justice Scalia
writing for the majority in Bennett, supra at 165, held
that the grant of standing to “any person” under the
Endangered Species Act, 16 USC 1540(g) must be taken at
“face value” because “the overall subject matter of this
legislation is the environment (a matter in which it is
common to think that all persons have an interest) and that
the obvious purpose of the provision is to encourage
enforcement
by
so-called
‘private
attorneys
general’. . . .”
14
Court in ASARCO, Inc v Kadish, 490 US 605, 617; 109 S Ct
2037, 104 L Ed 2d 696 (1989):
We
have
recognized
often
that
the
constraints of Article III do not apply to state
courts, and accordingly the state courts are not
bound by the limitations of a case or controversy
or other federal rules of justicibility . . . .
Nevertheless,
length
because
insists
that
the
majority
article
incorrectly
III’s
case
or
and
at
controversy
constraints do apply to Michigan, it is necessary to review
those constraints.
For
the
purposes
of
this
case,
the
relevant
articulation of federal article III-based standing test is
found in Lujan v Defenders of Wildlife, 504 US 555; 112 S
Ct 2130; 119 L Ed 2d 351 (1992).15
the
lead
opinion
of
the
In Lujan, supra at 560,
United
States
Supreme
Court
concluded that the “irreducible constitutional minimum” for
standing
within
the
meaning
of
Article
III’s
“case
or
controversy” limitation is as follows:
First, the plaintiff must have suffered an
“injury in fact” — an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’”
Second, there
must be a causal connection between the injury
and the conduct complained of — the injury has to
15
This articulation is relevant because, as will be
discussed
infra,
the majority in
Lee
“supplemented”
Michigan’s standing test with Lujan’s article III-based
test.
15
be “fairly . . . trace[able] to the challenged
action of the defendant, and not . . . the result
[of] the independent action of some third party
not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.” [Citations omitted.]
In
agreed
Lujan,
that
six
the
United
States
plaintiffs
had
Supreme
failed
to
Court
justices
demonstrate
a
concrete injury resulting from a lack of opportunity to
consult regarding the impact of certain federally funded
overseas
activities
endangered
species
on
on
its
members
unspecified
16
ability
future
to
trips
observe
abroad.16
The Lujan lead opinion was authored by Justice
Scalia and joined in whole by Chief Justice Rehnquist and
Justices White and Thomas.
Justice Kennedy, joined by
Justice
Souter,
concurred
separately,
agreeing
that
respondents failed to demonstrate a concrete injury.
Justice Kennedy in his concurrence did not join the part of
the
opinion
that
articulated
the
three
element
“irreducible” test, but rather based his concurrence on
respondents failure to demonstrate a concrete injury that
would be sufficient “under our precedents.”
Lujan, supra
at 580. The Lujan standing test has been applied, however,
in subsequent decisions of the United States Supreme Court.
See e.g. Bennett, supra and Friends of the Earth, Inc v
Laidlaw Environmental Services (TOC), Inc, 528 US 167; 120
S Ct 693; 145 L Ed 2d 610 (2000).
Over the dissent of
Justices Scalia and Thomas, the United States Supreme Court
in Laidlaw tempered its application of the Lujan concrete
injury requirement holding that a plaintiff’s “reasonable
concerns” that a defendant’s conduct would affect their
recreational,
aesthetic,
and
economic
interest
was
sufficient.
Though Laidlaw preceded this Court’s decision
in Lee, it was not mentioned by the Lee majority. However,
it should be noted that the majority now cites with
approval the Laidlaw dissent of Justice Scalia.
Ante at
29, n 20.
16
The Lujan lead opinion, with the qualified support of the
concurrence, noted that “[w]e have consistently held that a
plaintiff
raising
only
a
generally
available
grievance
about government — claiming only harm to his and every
citizen’s
interest
Constitution
and
in
laws,
the
and
proper
seeking
application
relief
of
no
that
the
more
directly and tangibly benefits him than it does the public
at
large
—
controversy.”
does
not
state
an
article
III
case
or
Id. at 573-574.17
Until the decision in Lee, it was well-understood by
this
Court
that
article
III’s
“case
or
controversy”
limitation was inapplicable to Michigan courts.18
Until
Lee, no decision of this Court characterized standing in
Michigan
courts
as
being
a
constitutional
question.
Nonetheless, the Lee majority adopted Lujan’s article IIIbased
test,
concluding
vaguely
“fundamental to standing.”
that
Lujan’s
Lee, supra at 740.
test
was
The Lee
17
Justices Kennedy’s concurrence with this portion of
the lead opinion was qualified by his view that “Congress
has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy
where none existed before.” Lujan, supra at 580.
18
ASARCO, Inc, supra at 617 and House Speaker, supra
at 559 n 20.
See also Lee, supra at 743 (WEAVER, J.
concurring); Detroit Fire Fighters, supra at 643(RILEY, J.
concurring) .
17
majority warned that to neglect standing “would imperil the
constitutional architecture whereby governmental powers are
divided
between
the
three
branches
fact
that
of
government.”
Lee,
supra at 735.
Obscuring
the
Michigan’s
Constitution
contains no corollary to article III, §2, the Lee majority
suggested that Michigan’s standing doctrine developed on a
parallel
track
underpinning.”
by
way
of
“additional
constitutional
Lee, supra at 737 (emphasis added).
The
“additional constitutional underpinning” referenced by the
Lee majority was Const 1963, art 6, § 1, which vests the
state judicial power in the courts,19 and Const 1963, art 3,
§ 2, which divides the powers of government into three
branches.20
However, the cases addressing these provisions
cited by the Lee majority were not standing cases; rather
each involved a distinct question regarding the scope of
19
Const 1963, art 6, § 1 provides:
“The judicial
power of the state is vested exclusively in one court of
justice which shall be divided into one supreme court, one
court of appeals, one trial court of general jurisdiction
known as the circuit court, one probate court, and courts
of limited jurisdiction that the legislature may establish
by a two-thirds vote of the members elected to and serving
in each house.”
20
Const 1963, art 3, § 2 provides:
“The powers of
government are divided into three branches; legislative,
executive and judicial. No person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.”
18
power.21
judicial
In
other
words,
the
Lee
majority
incorrectly equated Michigan case law addressing unrelated
issues of “judicial power” with federal case law addressing
article
III’s
“case
or
controversy”
constraints
on
standing.22
The
Lujan’s
Lee
majority’s
article
groundwork
to
analysis,
III-based
question
and
standing
the
its
adoption
of
test,
laid
the
Legislature’s
authority
to
confer standing on plaintiffs who would not survive Lee’s
test.
test
I continue to believe that the adoption of the Lujan
for
standing
by
the
Lee
majority
was
Lee, supra at 744 (WEAVER, J. concurring).
unnecessary.
Further, the
majority’s application of Lee’s standing test to a case
involving
a
constitutionally
based,
expressly
legislated
21
The Lee majority cited Sutherland v Governor, 29
Mich 320 (1874) which held that the courts cannot issue a
mandamus against the Governor; Daniels v People, 6 Mich 381
(1859), which held the authority to set a criminal
defendant’s bail was a ministerial, not a judicial act;
Risser v Hoyt, 53 Mich 185; 18 NW 611 (1884), which held
the Legislature cannot delegate judicial power to circuit
judges acting in chambers as opposed to in court; Johnson v
Kramer Bros Freight Lines, Inc, 357 Mich 254; 98 NW2d 586
(1959), which held the Legislature may delegate to the
judiciary the power to determine whether good cause
justified a writ of garnishment.
22
Even the author of Lujan’s lead opinion, Justice
Scalia, recognized a distinction between article III-based
standing
limitations
and
the
“merely
prudential
considerations that are part of judicial self-government .
. . .” Lujan, supra at 560.
19
grant of standing demonstrates that the adoption of Lujan
is
not
only
Michigan’s
unnecessary,
case
law
it
is
addressing
wrong
for
Michigan.
distinguishable
issues
involving the scope of judicial power before Lee already
protected
the
balance
of
powers
among
Michigan’s
three
branches of government.23
It is simply not true that a judge-made standing test
based on a federal constitutional provision that has no
corollary
in
majority,
Michigan
better
architecture.”
majority’s
federal
preserve
Lee,
does
abandonment
of
at
promised
735.
diversion
nothing
thirty
as
Michigan’s
supra
distracting
law
would,
to
years
the
Lee
“constitutional
Certainly,
the
contemplations
into
of
clarify
of
by
or
justify
precedent
under
its
MEPA.
Nevertheless, it is clear that Lee has, and the majority in
this
case
standing
has,
test.
Legislature’s
constitutionalized
Michigan’s
In
majority
so
authority
doing,
to
the
modify
or
judicial
usurps
abrogate
judiciary’s prudential standing constraints.
the
the
It is, thus,
the majority’s application of Lee’s article III-based test
to this and future MEPA cases that will disrupt Michigan’s
23
See, e.g., Sutherland,
Risser, supra; Johnson, supra.
20
supra;
Daniels,
supra;
“constitutional
architecture”
and
the
legislatively
conferred access to the courts.
IV.
Preserving Michigan’s Constitutional Structure
Among the reasons why Lee’s article III-based standing
test
or
any
judge-created
standing
test
should
not
be
applied to MEPA plaintiffs, the most important is that to
do
so
defeats
understandable
the
clear,
unambiguous,
and
readily
of
4,
the
Michigan
purpose
Constitution.24
art
§
52
of
Through art 4, § 52, the people of Michigan
directed the Legislature “to provide for the protection of
the air, water and other natural resources of the state
from pollution, impairment and destruction.”
provides
that
this
mandate
serves
the
Art 4, § 52
people’s
express
“paramount concern in the interest of the health, safety
and
general
respect
to
welfare
“the
of
the
people”
“conservation
and
natural resources of the state.”
words
of
art
4,
§
52,
the
specifically
development
with
of
the
Employing the precise
Legislature
enacted
MEPA
in
fulfillment of art 4, § 52’s mandate.
Since MEPA’s enactment, this Court has held that the
Michigan Legislature could confer standing under MEPA to
24
See, e.g., Mich Farm Bureau v Secretary of State,
379 Mich 387, 393; 151 NW2d 797 (1967) (addressing
principles of constitutional construction.)
21
“any person” who alleges that a defendant’s conduct has or
is likely to “pollute, impair or destroy the air, water or
other natural resources or the public trust therein.”
supra.
Ray,
MEPA plaintiffs have not been required, until now,
to overcome any judge-created standing tests to gain access
to
the
courts.25
It
is
clear
that
the
Legislature’s
explicit grant of standing to ”any person” under MEPA was
intended to operate free from judge-made standing tests.
Expanding the application of Lee, therefore, undermines art
4,
§
52
and
the
Legislature’s
policy
decisions,
by
restricting who may bring a MEPA action to court.
Expanding the application of Lee’s standing test, as
the
majority
does
in
this
case,
also
infringes
the
Legislature’s power to make laws pursuant to art 4, § 52.26
25
MEPA requires plaintiffs to show “that the conduct
of defendant has polluted, impaired, or destroyed or is
likely to pollute, impair, or destroy the air, water, or
other natural resources . . . .”
MCL 324.1703(1).
The
defendant may rebut a plaintiff’s case by submitting
evidence to the contrary or by way of an affirmative
defense show “that there is no feasible and prudent
alternative to defendant’s conduct and that his or her
conduct is consistent with the promotion of the public
health, safety, and welfare in light of the state’s
paramount concern for the protection of its natural
resources from pollution, impairment, or destruction.” Id.
26
This present case is distinguishable from Lee
because the statute at issue in Lee did not involve a
legislated and express cause of action coupled with an
unambiguous grant of standing.
Lee addressed plaintiff’s
(continued . . . .)
22
The
Legislature’s
decision
to
allow
“any
person”
to
maintain a cause of action under MEPA is consistent with
art 4, § 52’s environmental mandate and is an exercise of
legislative
discretion
that
carries
a
presumption
of
constitutionality.
Johnson v Kramer Bros Freight Lines,
Inc, supra at 257.
As duly recognized by Justice COOLEY: “no
court can compel the Legislature to make or to refrain from
making laws, or to meet or adjourn at its command, or to
take any action whatsoever, though the duty today it be
made
ever
so
clear
by
the
constitution
or
the
laws.”
Sutherland, supra at 326.
Through MEPA, the Legislature has given “the private
citizen a sizable share of the initiative for environmental
law enforcement.”
Eyde, supra at 454.
Yet it is strongly
implied by the majority that MEPA’s citizen-suit provision
unconstitutionally transfers to the judiciary the executive
power
This
to
ensure
argument
is
that
the
laws
are
unsupportable
and
faithfully
incorrect.
executed.
MEPA’s
citizen suit provision does not expand the power of the
judiciary; it grants the power to the people of this state
to pursue MEPA violations.
The court’s role in these cases
(continued . . . .)
standing to compel county boards of commissioners to levy a
tax establishing a veteran’s relief fund in accordance with
the soldier’s relief act, MCL 35.21 et seq.
23
differs in no way from any other controversy that comes
before
it:
the
court
hears
the
case,
interprets
the
applicable law, and renders a decision.27
Moreover, the Legislature’s decision to permit “any
person”
to
sue
under
MEPA
does
not
interfere
with
the
enforcement of the law by the executive branch, it simply
provides every citizen an opportunity to ensure that the
laws that are designed to prevent environmental harm are
enforced.
In this sense, MEPA’s citizen-suit provision is
consistent with the fact that, “[a]ll political power is
inherent in the people.
Government is instituted for their
equal benefit, security and protection.”
Art 1, § 1.
Further, the majority’s application of Lee’s standing
test ignores the fact that the three branches of government
cannot
“operate
in
all
respects
27
independently
of
the
Similarly, the majority is mistaken that art 3, § 8,
art 9, § 32, or art 11, § 5 grant “judicial power.” Ante
at 20-21. Art 3, § 8 grants power to the Legislature and
the Governor to request an advisory opinion on the
constitutionality of legislation.
Art 9, § 32 grants any
taxpayer the ability to pursue violations of the Headlee
Amendment, though this majority has recently eviscerated
that broad grant of standing by applying broad judicially
created principles of res judicata to preclude taxpayer
claims.
See Adair v Michigan, 470 Mich 105; ___ NW2d ___
(June 9, 2004) (Weaver, J. dissenting in part and
concurring in part.) Finally, art 11, § 5 grants power to
any citizen to pursue injunctive or mandamus relief for
violations of the provisions.
24
others, and that what are called the checks and balances of
government
constitute
each
Sutherland, supra at 325.
a
restraint
upon
the
rest.”
Justice COOLEY elaborated:
The Legislature prescribes rules of actions
for the courts, and in many particulars may
increase or diminish their jurisdiction; it also,
in many cases, may prescribe rules for executive
action, and impose duties upon, or take powers
from the governor; while in turn the governor may
veto legislative acts, and the courts may declare
them
void
where
they
conflict
with
the
constitution, notwithstanding, after having been
passed by the Legislature, they have received the
governor’s approval. But in each of these cases
the action of the department which controls,
modifies, or any manner influences that of
another, is strictly within its own sphere, and
for that reason gives no occasion for conflict,
controversy or jealousy.
The Legislature in
prescribing rules for the courts, is acting
within its proper province in making laws, while
the
courts,
in
declining
to
enforce
an
unconstitutional law, are in like manner acting
within their proper province, because they are
only
applying
that
which
is
law
to
the
controversies in which they are called upon to
give judgment.
It is mainly by means of these
checks and balances that the officers of the
several
departments
are
kept
within
their
jurisdiction, and if they are disregarded in any
case, and power is usurped or abused, the remedy
is by impeachment, and not by another department
of the government attempting to correct the wrong
by asserting a superior authority over that which
by the constitution is equal.” [Id.]
The legislative power includes the power to create new
legal rights.
And, where the Legislature chooses, it may
exercise its discretion to create and define new causes of
25
action.28
Unlike its federal counterpart, the jurisdiction
of the Michigan Judiciary is not limited by the case or
controversy limitations expressed in Article III, § 2 of
the United States Constitution nor by the federal court’s
ever-evolving interpretation of those limitations.
Without
a
doubt,
the
constitutionality
of
MEPA’s
citizen-suit provision remains “teed up” for a future open
and
direct
ruling
that
Lee’s
judicial
standing
test
supercedes the Legislature’s authority to confer standing.
The majority’s application of Lee’s standing test to any
person’s legislatively conferred and constitutionally-based
28
Art 3, § 7 provides:
The common law and the statute laws now in
force, not repugnant to this constitution, shall
remain in force until they expire by their own
limitations, or are changed, amended or repealed.
Interestingly, the majority recognized that this
constitutional provision grants the Legislature the power
to create a cause of action, limit or modify the cause of
action, eliminate a cause of action, or take the less
drastic step of limiting the damages recoverable for a
particular cause of action.
Phillips v Mirac, Inc, 470
Mich 415; __ NW2d __ (2004) (opinion of TAYLOR, J.). Art 3,
§ 7 is an additional constitutional basis for concluding
the Legislature has the authority to define who has
standing to pursue a cause of action that it creates and
defines.
By concluding to the contrary in this case, the
majority violates the separation of powers defined in the
Michigan Constitution by allowing judge-made standing tests
to usurp legislative policy decisions.
26
standing under MEPA improperly enlarges the court’s power
at
the
expense
violating
the
of
very
the
Legislature’s
“constitutional
power,
ironically
architecture”
the
majority purported to protect in Lee.29
V.
The
Plaintiffs have standing under MCL 324.1701(1)
circuit
court
concluded
that
plaintiffs
standing to sue under MEPA in light of Lee.
lack
To reach this
conclusion, that court reviewed affidavits of members of
plaintiff
organizations
and
made
the
following
comments
from the bench:
They were concerned about this, they were
concerned about that, they were concerned that
there might not be as many birds around Goose
Lake as there used to be.
And I’m not going to
take the time to go through the affidavits one by
one, but I think that anybody who reads them will
see how often the words or the phrases “I am
concerned” without any stated basis in those
affidavits for the reason for being concerned. I
am concerned that there will be an impact, I am
concerned that there has been a diminishment of
the fishery in Goose Lake, and I’m concerned that
the mining activities will further diminish the
fishery. That’s not enough.
29
With regard to the balance of governmental powers,
it is worth noting that because the current majority would
interpret the power of the Michigan court as limited by the
Art III, § 2 of the federal constitution, it has freed
itself to impose restrictions on access to Michigan courts
beyond those of the Legislature. Moreover, no other branch
of government can check or balance the majority’s exercise
of its improperly assumed power.
27
Plaintiffs appealed and the Court of Appeals reversed.
The Court of Appeals reviewed the plain language of MEPA
and,
citing
standing.
Ray,
correctly
held
that
plaintiffs
have
The Court of Appeals stated that it “declined
defendants’ invitation to read an additional requirement of
compliance with non-statutory standing prerequisites,” i.e.
judge-made standing tests.
Unpublished memorandum opinion,
issued June 11, 2002 (Docket No. 232706).
the
Court
of
Appeals
aptly
commented
In a footnote,
that
it
found
no
indication in Lee that this Court intended to overrule Ray
and
noted
that
distinguished
the
because
statute
it
did
at
issue
not
in
Lee
“contain
a
could
be
provision
expressly authorizing any person to maintain an action for
violations or omissions of the act.”
Slip op at 2.
I agree with the Court of Appeals that plaintiffs have
standing under MEPA.
Consistent with the people’s mandate
in art 4, § 52, the Legislature has determined that actual
or
threatened
pollution,
impairment,
or
destruction
of
natural resources is an injury that any person may seek to
enjoin in circuit court.
MCL 324.1701(1).
plaintiffs
that
have
alleged
the
mining will harm natural resources.
In this case,
defendant’s
proposed
This is sufficient
under MEPA to allow the plaintiffs their day in court.
28
Once
in
the
door,
plaintiffs
must
next
establish
their
prima facie case as required by MCL 324.1703(1).30
VI. Decoding the Majority Opinion
The Legislature’s grant of standing to “any person” in
MCL 324.1701(1) is unquestionably broader than Lee’s judgemade standing test.
The majority retains its firm belief
that Lee’s standing test is grounded in the constitutional
separation of powers.
By repeatedly asserting that the
Legislature may not confer standing more broadly than Lee,
the majority has impliedly decided the very constitutional
question they accuse this dissent of improperly reaching.
It appears that, from the majority’s mistaken perspective,
the
MEPA’s
because
the
citizen-suit
provision
Legislature’s
attempt
to
is
unconstitutional
confer
standing
on
“any person” under MEPA violates the separations of powers.
Moreover, it is the majority who, in Lee, created the
constitutional dilemma that must be resolved in this case.
As
previously
discussed,
Lee
30
unnecessarily
imported
the
The realities of a MEPA citizen-suit must not be
forgotten.
Plaintiffs must establish their prima facie
case, can receive only declaratory and equitable relief
(not money damages), and may be required to bear their own
costs. MCL 324.1703 and MCL 324.1701.
After more than 30
years, MEPA has not spawned an unmanageable stream of
citizen-suits so feared and anticipated by the majority.
Ante at 54-55.
29
federal
constitution’s
article
III
case
or
constraints on standing into Michigan law.
controversy
It should also
be noted that in Lee, the parties had not raised or briefed
the applicability of Lujan or article III of the federal
constitution.
On
its
own
initiative,
the
Lee
majority
raised Lujan’s standing test and transformed standing in
Michigan into a constitutional question.
I
fundamentally
disagree
with
the
majority’s
perception of judicial discipline and duty.
It is not
necessarily evidence of judicial discipline to dodge the
ultimate issue in a case, be the issue of constitutional
dimension or not.
Nor is it disciplined to import into
Michigan law federal constitutional constraints that the
people — the ratifiers of the Michigan Constitution — have
not
adopted.
Moreover,
where
the
Court
specifically
requests that an issue be briefed (as this Court did in
this case) and the issue is squarely presented, dodging the
question
destabilizes
inappropriate
further
where
unnecessary
the
the
law.
parties
litigation
It
must
or
is
bear
where
particularly
the
the
cost
of
decision
creates confusion for the bench and the bar.
In this case,
it
and
is
a
proper
exercise
of
judicial
duty
power
to
answer the constitutional question presented by this Court
30
regarding whether Lee’s judge-made standing test supercedes
the Legislature’s authority to confer standing.
Further,
restraint
324.1701(1)
while
by
purporting
leaving
in
doubt,
the
the
to
act
with
constitutionality
majority
attempts
to
judicial
of
MCL
chart
a
course for the resolution of issues not even before the
Court by suggesting that plaintiffs may not simply rely on
the affidavits to prove that standing exists.
Ante at 28.
The majority confuses the issue of standing with a court’s
subject-matter
erroneously
this
suggests
Court’s
standing.
jurisdiction.
that
unanimous
Id.
Ante
the
circuit
decision
However,
at
this
that
28.
The
court
can
majority
reverse
plaintiffs
Court’s
decision
have
that
plaintiffs have standing controls that issue.
The majority then hints that plaintiffs’ affidavits
may be insufficient either to survive a motion for summary
disposition or to meet the plaintiff’s burden of proof.
For this, the majority cites an irrelevant and nonbinding
United States Supreme Court dissenting opinion in a federal
case involving federal law.
The plain language of MEPA and
this Court’s own MEPA decisions are a far more appropriate
guide for the circuit court on remand.
MEPA instructs:
31
When the plaintiff has made a prima facie
showing that the conduct of the defendant has
polluted, impaired, or destroyed or is likely to
pollute, impair, or destroy the air, water, or
other natural resources or the public trust in
these resources, the defendant may rebut the
prima facie showing by the submission of evidence
to the contrary. The defendant may also show, by
way of an affirmative defense, that there is no
feasible and prudent alternative to defendant’s
conduct and that his or her conduct is consistent
with the promotion of the public health, safety,
and welfare in light of the state’s paramount
concern for the protection of its natural
resources
from
pollution,
impairment,
or
destruction.
Except as to the affirmative
defense, the principles of burden of proof and
weight of the evidence generally applicable in
civil actions in the circuit courts brought under
this part. [MCL 324.1703(1).]
As this Court previously held,
the necessary showing to establish a plaintiff’s
prima facie case is not “not restricted to actual
environmental degradation but also encompasses
probable damage to the environment as well.”
General rules of evidence govern this inquiry,
and a plaintiff has established a prima facie
case when his case is sufficient to withstand a
motion by the defendant that the judge direct a
verdict in the defendant’s favor.
[Nemeth v
Abonmarche Dev, Inc, 457 Mich 16, 25; 576 NW2d
641 (1998) (citations omitted).]
This Court has emphasized that MEPA’s, “very efficacy . . .
will
turn
on
how
well
circuit
court
judges
meet
their
responsibility for giving vitality and meaning to the act
through detailed findings of fact.”
VII.
Ray, supra at 307-308.
Conclusion
32
The
majority
decision
in
this
case
illustrates
how
judicial activism can be disguised as judicial restraint.31
Purporting to be concerned about the separation of powers,
the
majority,
undermine
in
the
actuality,
uses
Legislature’s
its
judicial
power
to
exercise
of
its
proper
authority to create a cause of action and define who can
pursue that action in court.
majority’s
constitutional
The clear implication of the
rhetoric
combined
with
its
application of Lee’s standing test to these plaintiffs is
that the majority will not yield to any grant of standing
by the Legislature that is broader than the majority’s own
judge-made test.
The majority’s decision destabilizes the
law and overrules 30 years of precedent.
3.
See supra at 3 n
The majority decision forces future MEPA plaintiffs to
establish that an actual or threatened environmental harm
has
actually
injured
or
will
imminently
injure
them
concretely, that such injury is traceable to the defendant,
or
that
such
injury
is
redressable
31
as
required
by
the
Indeed, the majority has unleashed an assault on
MEPA this term.
In this case, the majority applies Lee’s
restrictive standing test to MEPA plaintiffs and leaves the
future of the more permissive legislatively conferred
standing in doubt.
By its decision in the Preserve the
Dunes v Dep’t of Environmental Quality, ___ Mich ___; ___
NW2d ___ (2004), the same majority insulates an illegal
sand dune mining permit from scrutiny under MEPA, thereby
sanctioning the destruction of critical dunes.
33
majority opinion in Lee, supra at 739-740, or risk being
kicked
out
of
court
characterization
of
for
lack
the
of
standing.
majority’s
Thus,
application
of
any
Lee’s
judicial standing test as a narrower ground to resolve this
case is judicial gymnastics or gamesmanship, not an example
of true judicial restraint.
The
people
through
Michigan’s
Constitution
required
the Legislature to pass laws to protect the environment.
Art 4, § 52.
MEPA and its citizen-suit provision properly
implements the constitution’s directive.
supra at 184.
State Hwy Comm,
Lee’s more restrictive judge-made standing
test should not be imposed on plaintiffs by the majority in
this
case.
expressed
applied.
Rather,
by
the
To
“any
person”
standard
Legislature
through
MEPA
suggest
the
or
hold
otherwise
clearly
should
violates
be
the
separation of powers by allowing the judiciary to supercede
the Legislature’s grant of standing to “any person” under
MEPA.
I,
that
therefore,
plaintiffs
plaintiffs
Michigan
have
concur
have
in
the
standing.
standing
environmental
only
under
I
MCL
protection
majority’s
would
I,
dissent from all the majority’s reasoning.
Elizabeth A. Weaver
34
hold
324.1701(1)
act.
result
of
that
the
therefore,
S T A T E
O F
M I C H I G A N
SUPREME COURT
NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA ENVIRONMENTAL
COUNCIL,
Plaintiffs-Appellees,
v
No. 121890
CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP,
Defendants-Appellants,
and
MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSEL J. HARDING, Director
Of the Michigan Department of
Environmental Quality,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in result).
I agree with the result reached by the majority and
Justice
Weaver,
but
write
separately
to
acknowledge
my
change in position since this Court decided Lee v Macomb Co
Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001).
In that
case, I signed Justice Kelly’s dissent, which agreed with
the majority’s adoption of Lujan v Defenders of Wildlife,
504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992), as the
test
for
position
standing
for
the
in
this
reasons
state.
I
expressed
in
now
disavow
Justice
that
Weaver’s
opinion in Lee, as well as her concurrence in this case.
Lujan should not be used to determine standing in this
state.
Thus, I concur with the result reached by the majority
and the reasoning espoused by Justice Weaver.
Michael F. Cavanagh
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
NATIONAL WILDLIFE FEDERATION
and UPPER PENINSULA ENVIRONMENTAL
COUNCIL,
Plaintiffs-Appellees,
v
No. 121890
CLEVELAND CLIFFS IRON COMPANY
and EMPIRE IRON MINING PARTNERSHIP,
Defendants-Appellants,
and
MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSEL J. HARDING, Director
of the Michigan Department of
Environmental Quality,
Defendant-Appellee.
_______________________________
KELLY, J. (concurring in result only).
I agree with the opinion of Justice Weaver and with
the result reached by the majority.
The Court concludes that plaintiffs have
standing and
that they satisfy the judicial test that was adopted in Lee
v Macomb Co Bd of Comm'rs, 464 Mich 726, 747; 629 NW2d 900
(2001) (Kelly, J., dissenting).
The concurring justices
believe that this Court should not have adopted the test in
Lee, which incorporates the Lujan requirements.1
I believe
that Lee should not be applied in cases like this one.
The
majority
disagrees.
Consequently,
this
case
stands for the proposition that an individual bringing suit
under the Michigan environmental protection act (MEPA) must
show a particularized injury to satisfy standing.
However,
the
majority
goes
on
at
great
length
to
assert that the standing provision in MEPA would violate
the
constitutional
particularized
separation
injury.
The
of
powers
Court's
clause
absent
determination
a
on
standing renders the majority's discourse on the separation
1
Lee adopted the United States Supreme Court
requirements of Lujan v Defenders of Wildlife, 504 US 555;
112 S Ct 2130; 119 L Ed 2d 351 (1992).
Lujan requires a
plaintiff seeking standing to establish an actual or
imminent injury to his or her legal rights that is concrete
and particularized.
There must be a causal connection
between the defendant's action and the plaintiff's injury,
and the injury must be one for which the court can grant
redress. Lee at 739-740, quoting Lujan at 560-561. I have
come to believe that Lee wrongly adopted en toto the
federal standing requirements.
As Justice Weaver notes,
the Lujan standing test was not presented by the parties.
Also, the statute at issue in Lee differed from the statute
under consideration here in one important respect:
it
lacked a provision expressly authorizing an individual to
maintain an action for a violation of the act without
having suffered a particularized injury. Here the standing
issue has been fully presented and discussed. Moreover, I
do not believe that rejecting the Lujan requirements now
would work any unfairness that would mandate their
continuing retention in Michigan. Murray v Beyer Mem Hosp,
409 Mich 217, 222-223; 293 NW2d 341 (1980).
2
of powers doctrine unnecessary.
This discourse is simply
dicta.
from
Moreover,
allegiance
to
it
the
departs
principle
that
the
we
Court’s
do
not
usual
reach
a
constitutional question when narrower grounds will suffice
to resolve an issue.
Allied
Craftsmen,
J & J Constr Co v Bricklayers &
Local
1,
468
Mich
722;
664
NW2d
728
(2003).
If a decision were necessary about whether, absent the
showing
of
provision
would
a
particularized
violates
hold
that
it
the
injury,
separation
does
not.
of
The
MEPA’s
powers
standing
doctrine,
Legislature
has
I
the
authority to grant standing to a party who does not satisfy
the judge-made standing requirements of Lujan.
Lee wrongly
held that the federal requirements are prerequisites that
every plaintiff must satisfy.
STANDARD OF REVIEW
We
review
motions
for
summary
disposition
de
novo.
Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515
(2001).
Whether plaintiffs have standing is a question of
law that is also reviewed de novo.
Cardinal Mooney High
School v Michigan High School Athletic Ass'n, 437 Mich 75,
80; 467 NW2d 21 (1991).
When considering a ruling on a
motion for summary disposition under MCR 2.116(C)(8), we
look only at the pleadings and accept as true all well-
3
pleaded facts.
Radtke v Everett, 442 Mich 368, 373; 501
NW2d 155 (1993), citing Abel v Eli Lilly & Co, 418 Mich
311, 324; 343 NW2d 164 (1984).
PROCEEDINGS BELOW
The Marquette Circuit Court applied Lee and dismissed
this lawsuit finding that plaintiffs failed to demonstrate
that they had standing.2
The Court of Appeals disagreed and
reinstated the claim, holding that plaintiffs have standing
under MEPA.
Unpublished memorandum opinion of the Court of
Appeals, issued June 11, 2002 (Docket No. 232706).
We
granted leave to appeal specifically limited to the issue
"whether the Legislature can by statute confer standing on
a
party
who
does
not
satisfy
standing" that was adopted in Lee.
the
judicial
test
for
468 Mich 941 (2003).
The Legislature May Confer Rights Enforceable through
the Power of the Judiciary
The Michigan environmental protection act explicitly
recognizes
the
right
of
"any
person"
to
bring
suit
in
Michigan courts to protect the public trust in our land,
water,
and
other
natural
resources.
2
The
Legislature
Defendants' motion to dismiss plaintiffs' petition
for interlocutory review was brought under MCR 2.116(C)(8).
Although the circuit court found that plaintiffs had failed
to establish a prima facie case, the order dismissed the
case solely for lack of standing.
4
accomplished this by writing broad standing into the act,
supplementing the state's enforcement power with what has
been termed "private [a]ttorneys [g]eneral."
Associated
Industries of NY State v Ickes, 134 F2d 694, 704 (CA 2,
1943).
As the beneficiaries of that trust, each of us is
entitled to bring suit to conserve our environment.
The act fulfills a state constitutional obligation.
Hwy Comm v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974).
It springs from Const 1963, art 4, § 52 which provides:
The conservation and development of the
natural resources of the state are hereby
declared to be of paramount public concern in the
interest of the health, safety and general
welfare of the people. The legislature shall
provide for the protection of the air, water and
other natural resources of the state from
pollution, impairment and destruction.
Intentionally
Legislature
mirroring
wrote:
this
"any
language
person
may
in
the
maintain
act,
an
the
action
. . . for declaratory and equitable relief . . . for the
protection of the air, water, and other natural resources"
of the state.
MCL 324.1701(1).
Its decision to open wide the courthouse doors through
the act's standing provision merely returns to the people
some of the power to ensure that environmental laws are
executed.
acknowledge
Const 1963, art 1, § 1.
and
respect
this
5
The courts should
provision
as
a
clear
expression of legislative intent.
Dressel v Ameribank, 468
Mich 557, 562; 664 NW2d 151 (2003).
Michigan's Use of Private Attorneys General
When interpreting the Constitution, we give its words
their common understanding.
intended
to
have
require,
in
order
We assume that they were not
“elaborate
to
be
shades
of
understood,
meaning”
“the
or
to
exercise
of
philosophical acuteness or judicial research.”
Michigan
Farm Bureau v Secretary of State, 379 Mich 387, 391; 151
NW2d 797 (1967), quoting 1 Story, Constitution (5th ed), §
451, p 345.
We are mindful that the people expect and are entitled
that
their
courts.
reasonably
constitutional
With
regard
depend
that
to
rights
art
the
not
4,
courts
§
be
hobbled
by
the
52,
the
people
may
will
not
thwart
the
Legislature’s efforts to fulfill its mandate to protect our
public's trust in Michigan's natural resources.
We must
not import requirements for access to the courts that are
not founded on our Constitution.
Yet the majority has
created one such requirement by adopting the Lujan "case"
and "controversy" rule.
Before Lee, other provisions in our state Constitution
allowed suits to be brought in state courts by parties who
do not satisfy the Lujan requirements.
6
For example, art
11,
§
5
allows
“any
citizen”
to
seek
an
injunction
to
enforce its provisions. The Headlee Amendment states, “Any
taxpayer of the state shall have standing to bring suit in
the
Michigan
through
Court
31”3
of
(emphasis added).
of
Appeals
article
9.
to
Const
enforce
1963,
sections
art
9,
§
25
32
This Court may issue advisory opinions.4
A particularized injury need not be demonstrated in order
to sustain suits under these provisions.
See In re Request
for Advisory Opinion on Constitutionality of 1997 PA 108,
402 Mich 83; 260 NW2d 436 (1977).5
And citizens' suits have long been accepted in our
jurisprudence.
They, along with other actions brought by a
person who lacks an individualized injury, were known to
the framers of the federal constitution.
They existed in
the legal practice in the United States and England when
the
federal
constitution
was
written.
Individuals
were
allowed, also, to bring suits for writs of quo warranto and
mandamus.
Sunstein,
What’s
Standing
After
Lujan?
Of
Citizens Suits, “Injuries,” and Article III, 91 Mich L R
3
These sections address the state’s power to tax and
spend.
4
Const 1963, art 3, § 8.
5
The inference that I draw from these provisions is
that the state's judicial power is broad.
The majority
draws the opposite inference. See ante at 21 n 13.
7
163, 170 (1992).
Individuals were allowed, also, to bring
mandamus actions in the states.
See Sunstein at 171.
See
also Union Pacific Railroad v Hall, 91 US 343 (1875).
In England, suits by individuals, private attorneys
general, could be brought under the informers’ action and
the relator action.
In the informers' action, cash bounties were
awarded to strangers who successfully prosecuted
illegal conduct. In relator actions, suits would
be brought formally in the name of the Attorney
General, but at the instance of a private person,
often a stranger. [Sunstein at 172.]
Merely
because
created
a
government,
the
framers
tripartite
it
does
not
of
our
government
follow
that
state
like
they
Constitution
the
federal
intended
to
eliminate actions by private attorneys general.
The Separation of Powers Argument
The state separation of powers doctrine reads simply:
The powers of government are divided into
three
branches:
legislative,
executive
and
judicial.
No person exercising powers of one
branch shall exercise powers properly belonging
to another branch except as expressly provided in
this constitution.[6] [Const 1963, art 3, § 2.]
6
The most obvious meaning of this sentence is that one
individual may not simultaneously hold office in more than
one branch of government.
See Lutz, Popular Consent and
Popular Control: Whig Political Theory in the Early State
Constitutions, (Baton Rouge:
La State U Press, 1980) 96.
The federal constitution does not contain this prohibition.
(continued . . . .)
8
It has been understood that this provision is not to
be applied in an overly rigid fashion.
Some overlap is
acknowledged to exist in the functioning of the various
branches.
The
state
Constitution
permits
it.
For
instance, a civil rights commission within the executive
branch is vested with some lawmaking power.
art 5, § 29.
Const 1963,
Article 4, § 33 provides the Governor with
veto power over legislation, and art 11, § 7 provides the
Legislature with impeachment authority.
of
legislative
powers
unconstitutional
branches
of
to
per
se
government
executive
if
were
some
not
Indeed, any grant
agencies
overlap
would
between
permissible.
See
be
the
JW
Hampton, Jr, & Co v United States, 276 US 394; 48 S Ct 348;
72 L Ed 624 (1928).
The courts, also, have recognized that the separation
of powers doctrine allows limited overlap and interaction
between the branches.
Soap & Detergent Ass’n v Natural
Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982).
See
also Judicial Attorneys Ass'n v Michigan, 459 Mich 291,
315-316;
citing
586
the
NW2d
Court
894
of
(1998)
Appeals
(Taylor,
dissent
J.,
of
dissenting),
Judge
Markman.
(continued . . . .)
See O’Donaghue v United States, 289 US 516; 53 S Ct 740; 77
L Ed 1356 (1933).
9
Accordingly, when one branch exercises its power, it may
overlap the exercise of power belonging to another branch.
For
example,
the
executive
branch
may
officers to attempt to resolve disputes.
utilize
hearing
The Judiciary may
review the decisions of those hearing officers, although
doing so may appear to infringe on the executive branch's
exercise of its power to administer the law.7
The majority in Lee applied the federal separation of
powers and standing doctrines to the state and created a
mandatory particularized injury requirement for standing.
This requirement is not found in the text of either the
federal or state constitutions.
To exist, it had to be
gleaned from the historical context of the constitutions.
However, a plumbing of that context reveals no support for
a belief that a person must show a particularized injury
before gaining standing in order to bring a citizens' suit.
See pp 7-8 of this opinion.
Even though the federal separation of powers doctrine
has
been
found
to
require
a
particularized
injury
for
standing in federal courts, it does not follow that the
7
To say as the majority does that the powers of the
three branches do not overlap while the exercise of their
respective powers may,
ante at 47, is a semantic
distinction lacking a difference.
10
same rule applies in Michigan.
identical
to
our
federal
Our state's courts are not
courts.
They
are
part
of
a
government having broader powers and broader jurisdiction
than
the
federal
government
and
having
judges
who
are
selected by the people.
Although
the
state
similarly
structured,
respective
branches
the
is
and
federal
scope
of
different.
the
That
governments
powers
is
of
are
their
because
the
natures of the two governments are inherently different.
The federal government is one of enumerated powers.
The
states retain any powers not expressly ceded to the federal
government.
US Const, Am X.
State sovereignty to address any social problem that
threatens
the
public
welfare
is
plenary.
Washington-
Detroit Theatre Co v Moore, 249 Mich 673, 680; 229 NW 618
(1930).
Michigan’s Constitution, like that of many other
states,8 includes detailed substantive social and economic
provisions.
See, e.g., articles 8-10 on Education, Finance
and Taxation, and Property.
Accordingly, the power of the
state's judiciary is plenary as well, and Michigan’s courts
8
Hershkoff, State Courts and the “Passive Virtues”:
Rethinking the Judicial Function, 114 Harv L Rev 1833, 1855
n 116 (2001).
11
have
general,
broad
1963, art 6, § 1.
subject-matter
jurisdiction.
Const
See MCL 600.775.
By contrast, the jurisdiction of federal courts9 is
limited.
federal
For instance, a federal case must arise under a
question
citizenship.
or
the
parties
must
have
diversity
of
Federal judicial power is limited to "cases"
and "controversies," a fundamental restriction.
Allen v
Wright, 468 US 737, 750; 104 S Ct 3315; 82 L Ed 2d 556
Contrary to the majority's assertion,10 I do not
(1984).
argue
that
this
Instead,
it
judicial
power
restriction
limits
to
federal
certain
defines
the
courts'
utilization
disputes.
judicial
By
power.
of
the
contrast,
the
judicial power inherent in Michigan's courts may be applied
under a wider range of circumstances.
The
federal
standing
and
separation
of
powers
doctrines adopted by Lee from Lujan are predicated in part
also
on
the
fact
that
federal
accountable to the people.
judges
are
not
directly
United States v Richardson, 418
US 166, 180; 94 S Ct 2940; 41 L Ed 2d 678 (1974) (Powell,
J.,
concurring).
9
10
Federal
judges
See US Const, art III, § 2.
Ante at 23-24.
12
are
appointed
by
the
President11 and may be removed only by impeachment.12
By
contrast, our state judges are elected by the people.13
The United States Supreme Court has recognized that
access
to
state
constitution.
109
S
Ct
courts
is
not
limited
by
the
federal
ASARCO, Inc v Kadish, 490 US 605, 616-617;
2037;
104
L
Ed
2d
696
(1989).
Everything
considered, it is not surprising that the qualifications
for standing in state courts are broader than in federal
courts.
Other states have determined that their judicial power
is not constrained by the federal model.
For example,
Indiana has held:
While Article III of the United States
Constitution limits the jurisdiction of federal
courts to actual cases and controversies, the
Indiana Constitution does not contain any similar
restraint. Thus, although moot cases are usually
dismissed, Indiana courts have long recognized
. . . an exception to the general rule when the
case
involves
questions
of
"great
public
interest."
[In re Lawrance, 579 NE2d 32, 37
(Ind, 1991).]
Similarly,
Minnesota
has
recognized
that
federal
standing concerns historically have been related to whether
a
dispute
brought
for
adjudication
is
in
an
11
US Const, art II, § 2.
12
US Const, art III, § 1 and art II, § 4.
13
Const 1963, Art 6, §§ 2, 8, 12, 16.
13
adversary
context and is capable of judicial resolution.
However,
when standing has been conferred by a state statute, “there
is no constitutional basis for imposing a more stringent
standing
requirement
governing statute.”
[than
that]
which
is
set
by
the
Minnesota Pub Interest Research Group
v Minnesota Dep't of Labor & Industry, 311 Minn 65, 73; 249
NW2d 437 (1976) citing Ass'n of Data Processing Service
Organizations, Inc v Camp, 397 US 150, 151; 90 S Ct 827; 25
L Ed 2d 184 (1970).
646
So
2d
717
See also Dep't of Revenue v Kuhnlein,
(Fla,
1994),
Chester
Co
Housing
Auth
v
Pennsylvania State Civil Service Comm, 556 Pa 621; 730 A2d
935 (1999), In Life of the Land v Land Use Comm, 63 Hawaii
166; 623 P2d 431 (1981), and Sears v Hull, 192 Ariz 65; 961
P2d 1013 (1998).
Of
course,
this
is
not
to
say
that,
Michigan was without standing requirements.
before
Lee,
Simply, they
were more encompassing than the federal requirements.
To
have standing in Michigan courts, a person had to show the
existence
of
a
dispute
over
a
People, 6 Mich 381, 388 (1859).
14
legal
right.
Daniels
See Sunstein at 170.
v
The
necessary showing did not need to rise to the level of a
"case" or "controversy."14
Our state has relied on other requirements which also
serve to ensure that standing is not too broadly applied.
For example, the ripeness requirement ensures that a claim
has
actually
arisen
and
that
it
has
not
been
negated.
Obenauer v Solomon, 151 Mich 570; 115 NW 696 (1908).
The
requirement that the case not be moot ensures that it does
not present a purely abstract question and that only actual
disputes are litigated.
East Grand Rapids School Dist v
Kent Co Tax Allocation Bd, 415 Mich 381, 390; 330 NW2d 7
(1982).
See p 17 of this opinion.
I believe that our state's standing provisions before
Lee sufficiently ensured that judicial power was properly
constrained
proceed.
while
allowing
vigorously
pursued
suits
to
The decision in Lee wrongly blocked access to our
state's courts.
Hence,
standing
contrary
requirements
to
the
are
majority’s
not
14
essential
assertion,
to
Lee's
prevent
the
When
the
majority
characterizes
“cases”
and
“controversies” as synonymous with “disputes,” ante at 7,
it is mistaken.
See Lujan at 560.
Notably, the majority
produces no authority for this proposition.
Clearly,
"case" and "controversy" have specific meanings. Id.
15
judicial branch from overpowering the legislative branch
and the executive branch.
THE SEPARATION OF POWERS DOCTRINE AND MEPA
Turning
to
the
interplay
between
the
Michigan
environmental protection act and the separation of powers
clause, I cannot conclude that the act offends the clause.
Separation of powers principles ensure that courts do
not move beyond the area of judicial expertise and that
political
questions
are
not
answered
by
government unaccountable to the people.
a
branch
House Speaker v
Governor, 443 Mich 560, 574; 506 NW2d 190 (1993).
unable
to
standing
discern
provision
how
will
MEPA's
private
offend
of
attorneys
these
I am
general
principles.
The
Legislature made the public's interest in the environment a
right.15
legal
It
is
authorized
to
determine
enforce such rights and in what manner.
who
may
Davis v Passman,
442 US 228, 241; 99 S Ct 2264; 60 L Ed 2d 846 (1979).
MEPA is an expression of public concern for protecting
the
state’s
through
the
natural
normal
resources
political
15
that
was
process.
passed
It
into
law
reflects
the
An inherent Legislative power is to create legal
rights enforceable through the judiciary and define chains
of legal causation.
See Lujan at 578; 580 (Kennedy, J.,
concurring).
16
determination that the resources of the executive branch
should
be
supplemented
with
those
of
the
people.
The
majority today threatens to diminish the victory signified
by its passage.
MEPA
does
legislative
not
power
plaintiff.
The
at
enable
the
the
judiciary
instigation
structure
of
MEPA
plaintiffs are not mere interlopers.
of
a
to
exercise
disinterested
ensures
that
the
The act requires a
plaintiff to make a prima facie showing of environmental
damage.
MCL 324.1703.
Hence, there will always be alleged
actual or imminent harm that will ensure that cases like
this one will be ripe and that they will not be moot.
See
pp 15 of this opinion.
This case presents one such actual, live controversy.
The defendants' mine expansion is imminent.
Plaintiffs'
membership includes people who live and recreate in the
area of the mine and claim to be adversely affected by its
expansion.
Environmental and other collective concerns often have
strong
personal
manifestations,
"standby value" interests.
called
"passive
use"
or
See, e.g., General Electric Co
v United States Dep't of Commerce, 327 US App DC 33, 38;
128
F3d
767
(1997).
These
17
interests
ensure
that
environmental suits are vigorously pursued by people with a
strong personal belief in their claim.
I cannot perceive that the judiciary would be enabled
to
make
policy
by
this
Court's
affirmance
of
the
constitutionality of MEPA's standing provision without the
need for particularized injury.
Sutherland v Governor, 29
Mich 320, 324 (1874).
Neither
does
MEPA
offend
executive
authority.
The
Constitution states that "The executive power is vested in
the governor."
Const 1964, art V, § 1.
vested solely in the Governor.
delegate some of her power.
vest
some
of
its
power
However, it is not
Obviously, the Governor may
As stated, the Legislature may
in
an
agency.
Similarly,
Legislature may return it to the people.
how
to
vest
government.
judicial
justice."
The
power
power
For
exclusively
example,
is
vested
our
in
a
The people know
single
Constitution
exclusively
the
in
branch
says,
one
of
"The
court
of
Const 1963, art VI, § 1 (emphasis added).
Legislature's
decision
to
allow
the
people
to
directly enforce MEPA would offend the executive branch if
it
interfered
with
the
accomplish its functions.
executive
branch's
ability
to
Nixon v Administrator of Gen
Services, 433 US 425, 443; 97 S Ct 2777; 53 L Ed 2d 867
(1977), citing United States v Nixon, 418 US 683, 711-712;
18
94 S Ct 3090; 41 L Ed 2d 1039 (1974).
MEPA does not do
this.
MEPA
includes
a
mechanism
to
branch decisions are respected.
ensure
that
executive
It allows the judiciary to
refer environmental protection act cases to state agencies
for
resolution.
“supplementary
MCL
to
324.1704(2).
existing
administrative
procedures as provided by law.”
it
encourages
or
MEPA
authorizes
is
explicitly
and
regulatory
MCL 324.1706.
the
judiciary
Nothing in
to
itself
exercise executive power or hinders the discretion of the
executive branch.
MEPA poses no danger of "aggrandizement
or encroachment" of power that would trigger separation of
powers concerns.
Mistretta v United States, 488 US 361,
382; 109 S Ct 647; 102 L Ed 2d 714 (1989).
The New Judge-Made Standing Limitation
Obviously, this Court is entitled to constrain its own
power and limit standing as it has done in this case.
in doing so, it creates a self-inflicted wound.
But
See Warth
v Seldin, 422 US 490, 500; 95 S Ct 2197; 45 L Ed 2d 343
(1975).
No constitution requires it.
470 Mich ___, ___; ___ NW2d ___ (2004).
People v Goldston,
It is an entirely
judge-made limitation, a standing requirement fabricated by
judges where none existed before.
19
And, because it subverts
the popular will, it injures more than the judicial branch.
It injures the people.
The Court is ill-advised to curb its authority under
the guise of respect for another branch of government.
Its
decision today is an unwarranted contraction of the right
of the people to use the judicial and the legislative power
to protect their interest in preserving the environment.
It is not, as the majority asserts, a prudent check on an
attempted expansion of legislative power.
MEPA
powers
does
principles
particularized
require
not
that
violate
despite
injury
the
Ante at 9-11.
constitutional
the
fact
that
requirement.
judiciary
respect
separation
it
These
the
lacks
of
a
principles
Legislature’s
decision and fulfill its role to adjudicate disputes as a
co-equal branch of the state’s government.
The majority advances a parade of horribles16 that it
fears would emerge if MEPA's standing provision were not
supplemented by the
Lujan standing requirements.17
16
When
For a similar demonstration of this majority's
proclivity for doomsday prophesy, see its conclusion in
Preserve the Dunes v Dep't of Environmental Quality, ___
Mich ___; ___ NW2d ___ (2004). I note that there, I would
have respected the will of the people to enjoin critical
dune mining by ineligible entities.
The majority should
have done likewise. See ante at 38 n 25.
17
See ante 54-55.
20
examined
closely,
the
horribles
tend
to
shrink.
Under
MEPA, a plaintiff must establish prima facie environmental
harm sufficient to support a claim.
See MCL 324.1703(1)
and Nemeth v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641
(1998); MCR 2.116(C)(8), (10).
rules deter frivolous suits.
Moreover, existing court
See MCR 2.114 and MRPC 3.1
and 3.3.
It is improper to hold the plaintiffs in this case to
the
Lujan
judicial
test
for
standing.
Given
that
the
express will of the people is to the contrary, plaintiffs
now and in the future should not have to shoulder the Lujan
standing burden in MEPA cases.
CONCLUSION
I agree with the opinion of Justice Weaver and with
the
result
standing.
people
a
reached
by
the
majority.
Plaintiffs
have
The authority of the Legislature to give the
legal
right
to
protect
their
interest
in
the
environment through private attorneys general should not be
abridged.
I would find that the Michigan Legislature did not
violate the state Constitution by granting standing under
MEPA to a party who does not satisfy the judicially crafted
Lee test.
carefully
The applicable test here, the MEPA test, was
devised
by
the
Legislature.
21
Because
it
gave
standing to "any person," I believe that any person should
be able to avail himself of that law.
decision
and
analysis
should
be
The Court of Appeals
affirmed
and
remanded to the circuit court for trial.
Marilyn Kelly
Michael F. Cavanagh
22
the
case
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