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Re: E-M:/ Supreme Court Decision re Nestle



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Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
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Thanks for the highly practical observations. What're the odds that, in the current judicial climate, the courts begin limiting the ability of even statewide and national environmental organizations to sue? Despite the precedents and the ability of corporate interests and industry lobbyists to do so ...
I think that strict "textualists" are only strict when it suits them.


Mark Richardson writes:

I haven't had time to read the decision yet, but here are a couple of
comments:


1) The Clean Air Act and the Clean Water Act both have standing
requirements. Citizen enforcement has been pretty successful under
those laws. So adding a standing requirement to MEPA, while
undesireable, shouldn't totally destroy the ability to use the law. Practically speaking, it will probably fall to national or large
statewide environmental organizations to shoulder the burden of MEPA
litigation.


2) The Supreme Court majority like to refer to themselves as
"textualists." The text of MEPA says nothing about an injury in fact
requirement. Striking, isn't it, how willing the justices were to
depart from the plain text of MEPA in Cleveland Cliffs and this case? Apparently they had to reach all the way to the US constitution to do
that.


3) A major practical impact of the decision will be that from now on,
the first year or two of any citizen initiated MEPA suit will be given
over to depositions of plaintiffs to explore how "injured" they are, and
then inevitably, motions to dismiss for lack of standing to sue. This
will impose new burdens on plaintiffs but should make the defense bar
quite happy.


"Anna Dorothy Graham" <grahama9@msu.edu> 7/26/2007 8:56 AM >>>
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Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
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On an issue of the interpretation of state law, the U.S. Supreme Court
is supposed to defer to the state's Supreme Court (they violated their own


principle in Bush v. Gore), so there theoretically would be no point in

appealing, even if the Supremes were less conservative than they are at

present. There would need to be an issue of interpretation of federal
or Constitutional law for them to sit up and take notice.
Best hope is to go to the legislature and have them redress the issue
of standing. Even ousting a justice or two wouldn't help, unless they completely start ignoring stare decisis. This particular court seems
to have ignored the previous umpteen years of interpretation of MEPA, of course, but that's not to say that an incoming court would be so
cavalier with precedent.
The definition of an activist judge is one who ignores precedent and
the will of the legislature to legislate from the bench to suit his or her
own ideological bent. Sound familiar?
Anna


It seems that there are several routes to correct the situation:

	Vote out one of the judges in the majority;
	The governor with the agreement of 2/3 of the legislature can
remove a
judge; Art. VI Sect 25
Impeach the worst judge with consent of a majority of the
legislature
and conviction by 2/3 of the senate in trial. Art. XI Sect. 7 A
judge
once impeached cannot perform his functions until  acquitted.
	Amend the Constitution to include changes to Art. IV Sect 52
making
standing of any person part of the article and making MEPA better
based.
Appeal to the US Supreme Court. (and hope for the best.)

Any lawyers out there?


Robert Marshall
nmeac@charter.net Festina Lente






Anna Kirkwood Graham, J.D., Ph.D.
"There is no trifling with nature; it is always true, grave and severe;
it is always in the right, and the faults and errors fall to our share."
-- Goethe




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Anna Kirkwood Graham, J.D., Ph.D.
"There is no trifling with nature; it is always true, grave and severe; it is always in the right, and the faults and errors fall to our share."
-- Goethe




==============================================================
ENVIRO-MICH:  Internet List and Forum for Michigan Environmental
and Conservation Issues and Michigan-based Citizen Action.   Archives at
http://www.great-lakes.net/lists/enviro-mich/

Postings to:  enviro-mich@great-lakes.net      For info, send email to
majordomo@great-lakes.net  with a one-line message body of  "info enviro-mich"
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