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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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The way it works in my experience is that local people recruit national
or state organizations to represent them  or sometimes its the other way
around and the larger group identifies local people who are willing to
be plaintiffs.

There's no question that imposing a standing requirement makes it
tougher to sue.  Many environmental cases involve situations where the
"harm" is shared by the community generally or where particularized harm
is hard to prove because its long term rather than short term.

Having said that, federal citizen suit plaintiffs have been coping with
standing requirements for decades, and yet have accomplished quite a lot
of good for the environment.

I have not read the decision yet but suspect it was wrongly decided.  I
think the legislature had every right to pass a citizen suit statute
under the Michigan Constitution.  Importing reasoning from federal cases
seems dubious to me because those cases deal with the jurisdiction
granted to federal courts under the US constitution, which reads
differently than the Michigan constitution.

>>> "Anna Dorothy Graham" <grahama9@msu.edu> 7/26/2007 2:14 PM >>>
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Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
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Doesn't what you and Alex are saying tend to reinforce the idea that
the 
ability of environmental organizations to sue might wind up being
impaired 
as well?  If Joe Average Citizen isn't "anyone" for the purposes of the

statute, why is Joe Natural Resources Defense Council, particularly
when an 
unsympathetic court is the "gatekeeper" for redressing environmental
harm?  
I know what the standards are at the federal level, but it seems like
the 
court has rewritten the law for its own purposes at the state's. 

Do you suppose Republican voters from the working and middle classes
have 
any idea how anti-populist their candidates really are?  Of course, if
this 
winds up affecting "right-to-life" style advocacy groups, they'll begin
to 
realize. 

There needs to be a nationwide boycott of Nestle, starting with
enviro-mich 
 -- the ultimate irony in this case is that Nestle is a Swiss
corporation, 
exploiting our legal system and our natural resources.  Ah,
globalization. 

If you're interested in boycotting Nestle, you can find a list of their

brands at http://www.nestleusa.com/ -- unfortunately, it includes some

beloved favorites like Baby Ruth bars, Alpo, and Friskies cat food!  my
pets 
and I will have to readjust ...
Anna 


>
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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:
>>-------------------------------------------------------------------------
>>Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
>>-------------------------------------------------------------------------

>>
>>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   
>>> 
>>>==============================================================
>>>ENVIRO-MICH:  Internet List and Forum for Michigan Environmental
>>>and Conservation Issues and Michigan-based Citizen Action.  
> Archives
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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"
>>==============================================================
> 
> ==========================================
> 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  
> (517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com 
> ==========================================   
> 
> 
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> and Conservation Issues and Michigan-based Citizen Action.   Archives
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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
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Postings to:  enviro-mich@great-lakes.net      For info, send email to
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and Conservation Issues and Michigan-based Citizen Action.   Archives at
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