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



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Enviro-Mich message from David Holtz <dholtz@cleanwater.org>
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It should be pointed out that in the instant case, it is Michigan Citizens for Water Conservation v. Nestle and not a national organization or funding from a national organization.

Anna Dorothy Graham wrote:
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Enviro-Mich message from "Anna Dorothy Graham" <grahama9@msu.edu>
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I know all this -- I'm a lawyer, too. MEPA provided for broader standing than the Supremes have accorded in federal actions (Sierra Club v. Morton, Lujan, F.O.E. v. Laidlaw, etc. etc.). The real controversy in the Nestle case seems to be the requirement of injury-in-fact.
But earlier you posted:
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._
Why do you think that environmental organizations will be able to prove standing under MEPA when citizens such as those affected by the Nestle situation weren't? These are the directly-affected people that environmental organizations represent in lawsuits.
I'm not trying to be contentious -- I suspect that we're on the same side in this. But I think the long term outlook for environmental protection in the courts is not good, so long as our Supreme Court doesn't feel an obligation to adhere to the law as it is written.


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:
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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 ==============================================================
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"
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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 (517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com ==========================================


==============================================================
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
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majordomo@great-lakes.net with a one-line message body of "info
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============================================================== ==============================================================
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"
==============================================================


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"
==============================================================



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
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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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