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E-M:/ Insight on Michigan Supreme Court Decision on Nestle



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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Here is some more insight on the Michigan Supreme Court Decision 
on Nestle that trashes the Michigan Environmental Protection Act
by imposing onerous standing burdens when the act was written to 
enable "any citizen" to file litigation in Michigan.     This is from 
a longtime Michigan attorney who wanted to remain anonymous....

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1.  It follows the argument laid out in Cleveland Cliffs to a tee;

2. Its an enormous judicial power grab:  Young and Markman's argument
that inventing a standing requirement represents judical restraint is
totally disingenuous.  Since there is no definition of judicial power or
 "case or controversy" requirement in the Michigan constitution, the
majority simply choose to reach into their toolbox of rightwing law
review articles to grab a few "principles" to hang their hats on.  In
essence, they are saying that the "judicial power" is whatever they
happen to say it is at any given time. 

3.  From a legal analysis perspective, the chief flaw in my opinion is
that the majority conflate "standing" with the very existence of a
judiciable issue.  "Standing" is merely a judicially invented doctrine
to assure the existence of a justicable issue in particular cases. Its
not the same thing as the existence of the justiciable issue itself. 
Its just one of several tests that may or may not apply to help the
court determine whether an issue that a court is capable of deciding
really exists.

For example, everybody agrees that the Attorney General doesn't need a
"particularized injury" to go to court.  He can go to court  to assert
the public interest, and the public interest only.  Does the lack of a
plaintiff with a particularized injury mean there is no justiciable
issue when the AG sues somebody?  Of course not.  And what about the
Michigan Court's power to issue advisory opinions?  That's done before
anybody gets "hurt."

Of course, the majority had to jump through a lot of hoops to insert a
standing requirement into MEPA.  Only by pretending that the only kind
of cases they have constitutional power to hear are those where the
plaintiff has lost something different than everybody else could these
"textualists" disregard the plain text of MEPA. 

4.  Unlike Markman in Cleveland Cliffs, Young doesn't go on at length
about how the "floodgates" will be opened if standing is eliminated. 
But he does hint at it with his claim that "anyone but a martian" might
be able to sue unless the "ecological nexus" theory is rejected.  

Of course, the "barbarians at the gates" argument is a favorite canard
of modern-day conservative judges.  That the actual history of MEPA or
the genuine realities of litigation might totally undermine their notion
that the great unwashed will be constantly pestering judges with
frivolous lawsuits matters not at all to these ideologues.  Its the
principle that we mere citizens should mind our own business while
government and business elites decide what's best for us that's really
important to them.    



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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
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