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



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Enviro-Mich message from "Mark Richardson" <Mark.Richardson@macombcountymi.gov>
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Alex:  I still haven't read the decision, but my impression is it
basically follows the thinking outlined (in dicta) in the Cleveland
Cliffs decison of a few years ago.  

The basic thrust of that thinking is that broad citizen suit provisions
of any stripe are unconstitutional because under our three branches of
government only the courts exercise the "judicial power" which allegedly
includes the gatekeeper function of deciding who has the right to go to
court.  Never mind that the cases supporting this theory cited in
Cleveland Cliffs pertained to federal courts under the US constitution
and not Michigan courts under the Michigan constitution.

I suspect if you investigated you'd find that this theory either
originated with the Federalist Society or was refined, popularized, and
promoted by the Federalist Society.





>>> "Alexander J. Sagady" <ajs@sagady.com> 7/26/2007 12:10 PM >>>
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Enviro-Mich message from "Alexander J. Sagady" <ajs@sagady.com>
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MEPA says that "any person" may commence an action under 
the Act to litigate against "pollution, impairment or destruction" or 
to address consideration of feasible and prudent alternatives.

"(1) 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. "

also...

(1) If administrative, licensing, or other proceedings and judicial
review of such proceedings are available by law, the agency or the court
may permit the attorney general or any other person to intervene as a
party on the filing of a pleading asserting that the proceeding or
action for judicial review involves conduct that has, or is likely to
have, the effect of polluting, impairing, or destroying the air, water,
or other natural resources or the public trust in these resources.

(2) In administrative, licensing, or other proceedings, and in any
judicial review of such a proceeding, the alleged pollution, impairment,
or destruction of the air, water, or other natural resources, or the
public trust in these resources, shall be determined, and conduct shall
not be authorized or approved that has or is likely to have such an
effect if there is a feasible and prudent alternative consistent with
the reasonable requirements of the public health, safety, and welfare."


Someone please tell me....if the Legislature has enacted this plain
language saying 
"any person" may maintain an action under this act, how can one write
words of the 
english language any clearer to state what the rights of any Michigan
citizen are to 
protect the environment from "pollution, impairment and destruction."  


It seems to me that Michigan Supreme Court Judges Cliff Taylor, Stephen
Markham, 
Robert Young Jr. and Maura Corrigan have engaged in nothing less than
an act
of unbridled judicial activism and usurpation of the legislative intent
of MEPA.   Michigan's
natural resources are a public trust, but this 4 person majority on the
Michigan 
Supreme Court have taken away the ability of Michigan citizens to
protect that 
public trust as a general principle using the MEPA provisions.   They
set up a straw man 
to say that there can be no controversy to adjudicate unless one is
injured and thus 
ignoring all aspects of the public trust provisions in the act.   The
statute was intended
to allow any person in the state to take responsibility to ensure that
the public trust was 
protected if government or culpable private parties would not protect
the public trust.
In the minds of the radical judges in the majority on our state supreme
court, only 
property owners or direct users can be empowered under the Act.

I can't think of a way that a legislative enactment could be written to
overturn 
the Michigan Supreme Court decision.  What does the plain meaning of
the language of the statute 
say?    The majority's decision cites federal legal precedents on
standing issues that
don't have anything to do with our state law enactment of the "any
person" language in 
state law.

and....It is possible that it is also a time for a well organized
consumer boycott of 
Nestle and their products for this international corporation pursuing
this 
trashing of our state law.



At 10:38 AM 07/26/2007, Anna Dorothy Graham wrote:
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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 >>>
>>-------------------------------------------------------------------------
>>Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
>>-------------------------------------------------------------------------

>>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 
>
>
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==========================================
Alex J. Sagady & Associates        http://www.sagady.com 

Environmental Enforcement, Permit/Technical Review, Public Policy, 
Expert Witness Review and Litigation Investigation on Air, Water and 
Waste/Community Environmental and Resource Protection
Prospectus at:  http://www.sagady.com/sagady.pdf 

657 Spartan Avenue,  East Lansing, MI  48823  
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