479 Mich. 280 | Mich. | 2007
Lead Opinion
The sole question presented in this case is whether plaintiffs have standing to bring a claim under
In Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
I. FACTS AND PROCEDURAL HISTORY
This highly publicized case concerns certain interconnected .streams, lakes, and wetlands north of the Tri-Lakes region in Mecosta County, Michigan. These bodies of water include Osprey Lake, Thompson Lake,
Defendants Donald and Nancy Bollman own approximately 850 acres of land in an area known as the Sanctuary that surrounds Osprey Lake and several of the enumerated wetlands.
In order to begin pumping and bottling the water, Nestlé also obtained permits from the Michigan Department of Environment Quality (MDEQ) that ensured its compliance with the standards of the Safe Drinking Water Act.
Plaintiff Michigan Citizens for Water Conservation (MCWC) is a non-profit corporation of approximately 1,300 members that formed to protect and conserve water resources in Michigan, particularly in Mecosta County. It views Nestlé and its pumping activities as inimical to MCWC’s mission. Two hundred sixty-five members are riparian owners in the Tri-Lakes area, including plaintiffs R.J. and Barbara Doyle, who own land on the Dead Stream, and plaintiffs Jeffrey and Shelly Sapp, who own land on Thompson Lake.
MCWC filed suit in June 2001, seeking temporary and permanent injunctive relief against Nestlé. The trial court denied plaintiffs’ request for temporary injunctive relief to prevent Nestlé’s construction of the Stanwood bottling facility while the parties litigated Nestlé’s right to pump spring water from Sanctuary Springs. Later, in November 2001, plaintiffs filed a six-count second amended complaint.
After a lengthy bench trial, the trial court granted plaintiffs’ request for a permanent injunction of Nestlé’s pumping activities. In its opinion, the court made elaborate findings of fact identifying what it called the “zone of influence,” the “hydrological effects,” and the “ecological impacts” of Nestlé’s pumping activities.
plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydrologic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé’s pumping activities, whereby impact on one particular resource caused by Nestlé’s pumping necessarily affects other resources in the surrounding area. Therefore, although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impound*290 ment and wetlands 112,115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream’s wetlands, and Thompson Lake, which are used by and adjacent to properly owned by plaintiffs and not the subject of a standing challenge.[13 ]
Judge SMOLENSK! dissented. He would have found that plaintiffs lacked standing with respect to Osprey Lake and Wetlands 112,115, and 301 because plaintiffs did not use those areas, so they could not demonstrate that they had suffered or would suffer a concrete or particularized injury distinct from that of the public generally.
II. STANDARD OP REVIEW
Whether a party has standing is a question of law that we review de novo.
III. ANALYSIS
A. STANDING
This Court recently explained in Michigan Chiropractic Council v Comm’r of the Office of Financial & Ins Services,
[o]ur tripartite system of government is constitutionally established in both our state and federal constitutions. US Const, art III, § 1 confers upon the courts only “judicial power”; US Const, art III, § 2 limits the judicial power to “[clases and [clontroversies.” Similarly, our state constitution, Const 1963, art 3, § 2, provides:
“The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers*292 properly belonging to smother branch except as expressly provided in this constitution.”
The powers of each branch are outlined in the Michigan Constitution, which assigns to the Legislature the task of exercising the “legislative power,” the Governor the task of exercising the “executive power,” and the judiciary the task of exercising the “judicial power.”[22 ]
Standing is an indispensable doctrine rooted in our constitution and the tripartite system of government it prescribes. We vigilantly enforce principles of standing in order to vindicate the separation of legislative, executive, and judicial powers among the coordinate branches of government to which those respective powers have been committed. Indeed, “neglect of [standing] would imperil the constitutional architecture” carefully constructed by its drafters and ratified by the people.
As part of this endeavor to preserve separation of powers, the judiciary must confine itself to the exercise of the “judicial power” and the “judicial power” alone.
[t]he “judicial power” has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making. [471 Mich at 614-615.]
We went on in Nat’l Wildlife to distill this litany of considerations arising from the proper exercise of the “judicial power,” and we determined that “the most critical element” is “its requirement of a genuine case or controversy between the parties, one in which there is a real, not a hypothetical, dispute.”
Steadfast enforcement of standing principles and separation of powers demands remarkable judicial self-restraint. Before his appointment to the United States Supreme Court, Chief Justice John Roberts wrote that the doctrine of standing “implement[s] the Framers’ concept of ‘the proper — and properly limited — role of the courts in a democratic society’ ” so that “[standing is thus properly regarded as a doctrine of judicial self-restraint.”
“[i]f the judicial power extended to every question under the constitution it would involve almost every subject proper for legislative discussion and decision; if to every question under the laws and treaties of the United States it would involve almost every subject on which the executive could act. The division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”
Thus, the court that earnestly adheres to the doctrine of standing must exercise self-discipline to resist the temptation of usurping power from the other branches. The court that is willing to compromise the doctrine of standing and reach beyond the “judicial power” lacks such discipline.
Standing ensures that a genuine case or controversy is before the court. It “ ‘requires a demonstration that the plaintiffs substantial interest will be detrimentally affected in a manner different from the citizenry at large.’ ”
“First, the plaintiff must have suffered an ‘injury in facf-an invasion of a legally protected interest which is (a)*295 concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly .. . traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Nat’l Wildlife, 471 Mich at 628-629, quoting Lee, 464 Mich at 739, quoting Lujan v Defenders of Wildlife, 504 US 555, 560-561; 112 S Ct 2130; 119 L Ed 2d 351 (1992).][29 ]
Where the plaintiff claims an injury related to the environment, this Court lacks the “judicial power” to hear the claim if the plaintiff cannot aver facts that he has suffered or will imminently suffer a concrete and particularized injury in fact. In this context, “ ‘environ
B. APPLICATION
Plaintiffs MCWC and the Doyles and Sapps must satisfy the three elements of standing to pursue a MEPA claim against Nestlé. In other words, they must have (1) suffered an injury in fact (2) causally connected to Nestlé’s conduct that (3) can be redressed by a favorable decision. MCWC, as a nonprofit organization, must satisfy our requirement for organizational standing. A nonprofit organization has standing to bring suit in the interest of its members if its members would have standing as individual plaintiffs.
Defendant concedes, and we agree, that plaintiffs have standing to bring a MEPA claim with respect to the Dead Stream and Thompson Lake, because the Doyles and the Sapps enjoy riparian property rights to the Dead Stream and Thompson Lake, respectively. Therefore, if Nestlé’s pumping activities have impaired their riparian property rights, they clearly have suffered an injury in fact. Moreover, because these individual plaintiffs are members of MCWC, they confer organizational standing on MCWC with respect to the Dead Stream and Thompson Lake.
To be clear, we are refining, not dismissing, plaintiffs’ MEPA claim. Plaintiffs enjoy the full protection that MEPA affords to vindicate their riparian property interests. Thus, they have standing insofar as Nestlé’s pumping activities inflicted an injury in fact with respect to the Dead Stream and Thompson Lake. However, plaintiffs cannot similarly establish standing with respect to Osprey Lake and Wetlands 112, 115 and 301.
In reaching this conclusion, we reject the Court of Appeals “interconnectedness” theory of standing as inconsistent with Lee and Nat’l Wildlife. The trial court found as fact that many of the streams, lakes and wetlands in the Tri-Lakes area are joined by an inextricable, hydrological link. Drawing from these facts, the Court of Appeals held that
plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydro-*298 logic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé’s pumping activities, whereby impact on one particular resource caused by Nestlé’s pumping necessarily affects other resources in the surrounding area. Therefore, although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream’s wetlands, and Thompson Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge. [.Michigan Citizens, 269 Mich App at 113 (emphasis added).]
The flaw in this “interconnectedness” theory of standing is that it permits plaintiffs to evade their burden to establish an injury in fact. As the United States Supreme Court stated in Friends of the Earth, Inc v Laidlaw Environmental Services (TOC),
Plaintiffs defend the Court of Appeals standing analysis by arguing that all of the harm in this case is singularly traceable to Nestlé’s pumping activity, and so their single MEPA claim cannot be divided into multiple
Plaintiffs’ argument misses the basic point that plaintiffs are the focus of the standing inquiry, not the TriLakes region. We reject plaintiffs’ bootstrapping approach to standing under which, as long as they have standing to redress their injury in fact, they have standing to redress all injuries conceivably related to their injury in fact. No matter how pervasive the environmental damage in an ecosystem, plaintiffs must still successfully and succinctly establish their injury in fact. Plaintiffs satisfy this requirement for the Dead Stream and Thompson Lake, but not Osprey Lake and Wetlands 112, 115, and 301.
The caselaw that plaintiffs cite to support their position actually confirms our analysis. The Supreme Court cases cited by plaintiffs consistently required that the plaintiff demonstrate an injury in fact in order to bring suit.
Plaintiffs also rely on Cantrell v City of Long Beach.
Plaintiffs and their supporting amici
We disagree that either of these considerations changes the standing inquiry. Simply put, neither Const 1963, art 4, § 52 nor MCL 324.1701(1) lightens a plaintiff’s burden to satisfy traditional standing requirements in environmental cases. In Nat’l Wildlife, we noted that “art 4, § 52 does not authorize the Legislature to ignore all other provisions of the constitution in enacting laws to protect the environment.”
Similarly, simply by enacting MCL 324.1701(1), the Legislature cannot compel this Court to exercise the “judicial power” beyond constitutional limits any more than this Court can legitimately enlarge or diminish the Legislature’s constitutionally prescribed “legislative power.”
IV RESPONSE TO JUSTICE KELLY
Justice Kelly quotes the United States Supreme Court’s statement from Warth that “ ‘so long as the [standing] requirement is satisfied, persons to whom [the Legislature] has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim.’ ”
We conclude that Justice Kelly’s reliance on that statement from Warth is misplaced. First, the above-quoted statement from Warth is taken out of context by Justice KELLY. Warth simply does not stand for the proposition that a plaintiff may bring a claim asserting the general public interest where the plaintiff lacks constitutional standing to bring that claim himself.
In this case, plaintiffs cannot allege an injury in fact with respect to Osprey Lake and Wetlands 112,115, and 301. It follows that they cannot bring a MEPA claim with respect to those particular bodies of water because they cannot satisfy the minimum threshold for standing. Thus, we fail to see how plaintiffs could invoke the general public interest “in support of” a MEPA claim that they could never bring with respect to Osprey Lake and Wetlands 112, 115, and 301. Some of the confusion in this case might stem from the fact that the alleged widespread environmental damage affecting the several bodies of water was reputedly traceable to Nestlé’s pumping activities. Thus, if true, as a practical matter, injunctive relief ordering Nestlé to reduce or to stop its pumping activities could benefit Osprey Lake and Wetlands 112, 115, and 301. Nevertheless, we cannot confuse the potential effect of the remedy with plaintiffs’ constitutional burden to prove that they have standing to bring a claim.
We have not, as Justice KELLY insists, selectively adopted favorable portions of federal standing law and
Justice Weaver’s dissent merely reiterates objections she lodged in response to our prior standing cases— objections that this Court has considered and rejected. Because there is little to add to our previous colloquies with the dissenter (other than to direct the reader to our analyses in Lee and Nat’l Wildlife), we will briefly respond.
Justice WEAVER persists in her argument that the textual differences between the federal constitution and our state constitution prove that the exercise of “judicial power” or the doctrine of separation of powers in our constitution means something radically different than it does under the federal constitution.
[a]s the Michigan Constitution makes clear, the duty of the judiciary is to exercise the “judicial power,” and, in so doing, to respect the separation of powers. While as a*308 general proposition, the proper exercise of the “judicial power” will obligate the judiciary to give faithful effect to the words of the Legislature — for it is the latter that exercises the “legislative power,” not the judiciary — such effect cannot properly be given when to do so would contravene the constitution itself. Just as the judicial branch owes deference to the legislative branch when the “legislative power” is being exercised, so too does the legislative branch owe deference to the judicial branch when the exercise of the “judicial power” is implicated. Even with the acquiescence of the legislative and executive branches, the judicial branch cannot arrogate to itself governmental authority that is beyond the scope of the “judicial power” under the constitution. The “textual” approach of [Justice Weaver] is a caricatured textualism, in which the Legislature is empowered to act beyond its authority in conferring powers upon other branches that are also beyond their authority. [Nat’l Wildlife, 471 Mich at 637 (citations omitted; emphasis in original).]
Equally perplexing is Justice Weaver’s continued insistence that by refraining from exercising our “judicial power” where plaintiffs fail to allege an injury in fact, we have actually failed to show judicial restraint. Such reasoning turns “reality on its head.”
Her doctrinal misunderstandings aside, Justice Weaver’s core “political point” is that, in insisting on constitutional standing requirements, we have eviscerated environmental laws intended to protect Michigan’s natural resources, leaving Michigan residents helpless
Environmental laws, such as MEPA (or any'statutory law for that matter), may be vindicated by persons who have suffered a real injury in fact and thus have a stake in the controversy. Such is the case here with respect to plaintiffs’ MEPA claim to protect the Dead Stream and Thompson Lake. Moreover, environmental laws are also always enforceable by the executive branch through entities such as the MDEQ. If the people are unhappy with how the executive branch fulfills its enforcement functions, the remedy is not a lawsuit, but a political one at the ballot box.
Finally, just as we stated in Nat’l Wildlife, we have yet to find any support, textual or otherwise, other than Justice Weaver’s assertion, for her contention that Const 1963, art 4, § 52 renders standing principles inapplicable in matters of environmental concern.
Plaintiffs have standing to bring a MEPA claim against Nestlé to protect their riparian property rights in Thompson Lake and the Dead Stream. However, plaintiffs have not alleged an injury in fact with respect to the Osprey Lake Impoundment and Wetlands 112, 115, and 301 because there is no evidence that they use these areas and that their recreational, aesthetic, or economic interests have been impaired by Nestlé’s pumping activities. Accordingly, we affirm the Court of Appeals in part, but we reverse the Court of Appeals holding with regard to this issue and remand this case to the trial court for further proceedings consistent with this opinion.
MCL 324.1701 et seq.
471 Mich 608; 684 NW2d 800 (2004).
Id. at 629, quoting Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 US 167, 183; 120 S Ct 693; 145 L Ed 2d 610 (2000) (citation omitted).
The trial court referenced the “Dead Stream wetlands” in addition to the Dead Stream. These wetlands are found in and around the Dead Stream. For purposes of this case, we refer to the Dead Stream itself and its related wetlands collectively as the Dead Stream.
The Bollmans are not part of this appeal.
In order for Nestlé to bottle and market its product as spring water, the source had to satisfy the definition of “spring water” established by the federal Food and Drug Administration (FDA).
MCL 325.1001 et seq. The Legislature subsequently amended the Safe Drinking Water Act and other legislation to further regulate water diversion and bottling in Michigan. See, e.g., 2006 PA 33; 2006 PA 34;
Count I requested an injunction to prevent the construction of wells, wellhouses, and pipelines to transport water to the Stanwood facility. Count II alleged that Nestlé violated common-law riparian rights. Count III similarly claimed that the pumping violated common-law rules
The “zone of influence” included the Dead Stream, Osprey Lake, Thompson Lake, and Wetlands 115, 112, and 301. The “hydrological effects” section of the opinion described the reduced flow and water levels in the lakes, streams, and wetlands that the court attributed to the pumping. The “ecological impacts” section of the opinion summarized the predicted ecological consequences that the court causally linked to the reduced flow and water level in those bodies of water.
With respect to the common-law groundwater claim, the court found that this case involved an unprecedented intersection of Nestlé’s groundwater rights with plaintiffs’ riparian rights. After reviewing Michigan common law in this area, the court developed a test that, if groundwater and riparian rights clash and a hydrological connection is proven, riparian rights take priority above groundwater rights. If the groundwater use removes the water from the watershed, then any such use may not reduce natural flow to a riparian body. Applying this test, the court concluded that Nestlé’s withdrawals of spring water impaired plaintiffs’ riparian rights.
With respect to the MEPA claim, the court found that plaintiffs established an unrebutted prima facie case that Nestlé’s pumping activi
Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 269 Mich App 25; 709 NW2d 174 (2005). Before Nestlé’s appeal of right, the Court of Appeals granted Nestlé’s requested stay of the injunction and set a maximum pump rate of 250 gallons per minute. That rate was reduced to 200 gallons per minute after the Court of Appeals issued its opinion.
Nestlé also appealed the common-law groundwater claim. The panel adopted a different test from that applied by the trial court. Derived from earlier Michigan cases, this “reasonable use” balancing test required a case-by-case application of principles of ensuring fair participation, protecting only reasonable uses, and prohibiting only unreasonable harms. See, e.g., Dumont v Kellogg, 29 Mich 420 (1874); Maerz v United States Steel Corp, 116 Mich App 710; 323 NW2d 524 (1982). The Court of Appeals concluded that under this test Nestlé’s pumping at 400 gallons per minute was unreasonable. It remanded this issue to the trial court to determine the appropriate level of pumping.
Michigan Citizens, 269 Mich App at 113 (opinion of Murphy, EJ.).
Id. at 83.
MCL 324.1701(1) states:
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.
Michigan Citizens, 269 Mich App at 87.
464 Mich 726; NW2d 900 (2001).
The Court of Appeals also resolved other issues. It rejected defendant’s argument that the trial court’s factual findings were clearly erroneous and that the trial court abused its discretion when it refused to grant defendant’s request to reopen the proofs or supplement the record. It also affirmed the trial court’s dismissal of plaintiffs’ public trust claim. Additionally, the Court of Appeals agreed with defendant that the trial court erred by granting plaintiffs’ motion for costs as prevailing parties.
477 Mich 892 (2006).
Lee, 464 Mich at 734.
475 Mich 363, 369-370; 716 NW2d 561 (2006).
See also Const 1963, art 4, § 1 (vesting the “legislative power” in a senate and a house of representatives); Const 1963, art 5, § 1 (vesting the “executive power” in the governor); Const 1963, art 6, § 1 (vesting the “judicial power ... exclusively in one court of justice”).
Lee, 464 Mich at 735. See generally Nat’l Wildlife, 471 Mich at 612-628 (thoroughly discussing standing, separation of powers, and the proper exercise of “judicial power”).
Nat’l Wildlife, 471 Mich at 615.
See Comment: Article III limits on statutory standing, 42 Duke L J 1219, 1220, 1221 (1993); see also Scalia, The doctrine of standing as an essential element of the separation of powers, 17 Suffolk ULE 881, 890-893 (1983) (discussing the relationship between separation of powers and the doctrine of standing).
Article III Limits, 42 Duke L J at 1230.
547 US 126 S Ct 1854, 1861; 164 L Ed 2d 589 (2006), quoting 4 Papers of John Marshall 95 (C Cullen ed, 1984).
Lee, 464 Mich at 738-739, quoting House Speaker v Governor, 441 Mich 547, 554; 495 NW2d 539 (1993).
Concerning Justice Cavanagh’s dissent, we are perplexed about how he would analyze standing cases. The United States Supreme Court decision in Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992), is the most significant recent judicial pronouncement on standing. In Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 650-651; 537 NW2d 436 (1995), Justice CAVANAGH affirmatively cited Lujan to conclude that a labor union had standing. In Lee, 464 Mich at 750, joining Justice Kelly’s dissent, he again “agree[d] with the majority’s adoption of the Lujan test.” Then, in Nat’l Wildlife, 471 Mich at 676, Justice Cavanagh “disavow[ed]” his previous position and concluded that “Lujan should not be used to determine standing in this state.” Finally, in this case, he favorably cites Lujan, post at 322-323, while also joining a dissent that concludes that Lujan is inapplicable in this state. In short, on an issue of enormous constitutional consequence, Justice Cavanagh has, without much explanation, adopted a variety of seemingly inconsistent positions. Under these circumstances, it would seem to behoove Justice Cavanagh to demonstrate somewhat greater reservation than he does before joining a dissenting opinion in which the political motivations of the majority justices are called into question without justification— justices who have consistently adhered to the same constitutional position on standing over the years without regard to the parties or interests involved. See, e.g., Lee, supra; Nat’l Wildlife, supra; Michigan Chiropractic Council, supra; Rohde, infra.
Nat’l Wildlife, 471 Mich at 629, quoting Laidlaw, 528 US at 133 (citations omitted).
Laidlaw, 528 US at 184.
Nat’l Wildlife, 471 Mich at 629; Trout Unlimited, Muskegon White River Chapter v White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992).
Of course, in the process of protecting plaintiffs’ riparian rights in the Dead Stream and Thompson Lake, a successful MEPA claim may have the incidental effect of protecting Osprey Lake and Wetlands 112, 115, and 301 because the common source of the environmental harm that the trial court found in the entire region was Nestlé’s pumping activity.
528 US 167, 181; 120 S Ct 693; 145 L Ed 2d 610 (2000).
See, e.g., Sierra Club v Morton, 405 US 727; 92 S Ct 1361; 31 L Ed 2d 636 (1972); Worth v Seldin, 422 US 490; 95 S Ct 2197; 45 L Ed 2d 343 (1975).
504 US at 555, 565 (emphasis in original).
Id. at 565-566.
241 F3d 674 (CA 9, 2001).
Id. at 680-681.
Nat’l Wildlife, 471 Mich at 630.
In response to our order granting oral argument on the application, MDEQ and, collectively, the National Wildlife Federation, Michigan United Conservation Clubs, Tip of the Mitt Watershed Council, Pickerel-Crooked Lakes Association, and Burt Lake Preservation Association filed amicus briefs supporting plaintiffs.
See Const 1963, art 4, § 52, which declares that “[t]he conservation and development of the natural resources of the state are... of paramount public concern in the interest of the health, safety and general welfare of the people.” The provision then directs the Legislature to “provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
MCL 324.1701(1).
Cf. Const 1963, art 9, § 32 (“Any taxpayer of the state shall have standing to bring suit... to enforce the provisions of Sections 25 through 31....”).
Nat’l Wildlife, 471 Mich at 636-637. See also Rohde v Ann Arbor Pub Schools, 479 Mich 336; 737 NW2d 158 (2007) (holding MCL 129.61 unconstitutional because it grants any resident taxpayer the right to sue even if the resident taxpayer fails to satisfy the three-part test for standing).
Defendant and its supporting amici urge this Court to find MCL 324.1701(1) unconstitutional because it is an attempt by the Legislature to confer broader standing than what is constitutionally permitted. We decline this invitation. Although plaintiffs do not have standing with respect to every body of water identified by the trial court, they do have standing with respect to Thompson Lake and the Dead Stream, as defendant concedes. Therefore, this Court has no reason to consider the constitutionality of MCL 324.1701(1) because it is unnecessary to the resolution of this case.
Nat’l Wildlife, 471 Mich at 636-637; see also Rohde, 479 Mich at 346-355.
Post at 327, quoting Warth, 422 US at 501.
Justice Kelly’s position would, in fact, create a significant loophole in standing doctrine. Assuming that plaintiffs could assert the general public’s interest in preventing environmental destruction in support of their MEPA claim, it is unclear how the general public interest, as Justice Kelly defines it in this case, could confer standing that plaintiffs otherwise lack with respect to Osprey Lake and Wetlands 112,115, and 301.
Warth, 422 US at 501 (emphasis added). See also Cuno, 126 S Ct at 1867 (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”); Laidlaw, 528 US at 185 (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”).
405 US 727; 92 S Ct 1361; 31 L Ed 2d 636 (1972).
Worth, 422 US at 501.
Justice Kelly overstates the significance that the “general public interest” language from Warth enjoys in federal standing jurisprudence. The United States Supreme Court in Sierra Club, one of the cases on which Warth relied, stated that a party with standing “may argue the public interest in support of his claim that [a federal] agency has failed to comply with its statutory mandate.” Sierra Club, 405 US at 737. The Sierra Club Court focused on the standing requirements for a party seeking judicial review of federal agency actions. Thus, Warth clearly drew its dictum about the general public interest from the context of administrative law. Moreover, every gost-Wurth federal district court and circuit court case cited by Justice Kelly involved a federal agency’s alleged failure to fulfill its statutorily prescribed administrative duties, which indicates that Warth’s dictum has not been expanded outside its original administrative law context. Assuming that we were bound to follow this line of cases, which Justice Kelly acknowledges that we are not, it would not have any bearing on this case in any event because plaintiffs have not alleged that a state agency such as MDEQ has neglected its statutory responsibilities. Finally, we are unaware of any United States Supreme Court decision, particularly one decided after Lujan, that has applied the dictum from Warth in the manner advocated by Justice Kelly. Indeed, two current members of the Court, Justices Scalia and Thomas, have recently criticized other language from Warth as dicta. See Hein v Freedom from Religion Foundation, Inc,_US_; 127 S Ct 2553; 168 L Ed 2d 424 (2007) (Scalia, J. concurring in the judgment) (criticizing earlier Supreme Court cases that described the prohibition on generalized grievances as merely a prudential bar rather than an Article III standing consideration and characterizing Warth as the “fountainhead” of this dicta). Thus, we would be wise to carefully and critically consider dicta from Warth, and we believe we have done so.
However, if Warth truly stood for the proposition urged by Justice Kelly, it would violate the separation of powers principles upon which Michigan’s constitutional standing requirements rest and should be rejected on that ground.
See Nat’l Wildlife, 471 Mich at 625-628. Interestingly, the Constitution of the Commonwealth of Massachusetts, which predated our federal constitution, articulates the principle of separation of powers in language quite similar to 1963 Const, art 3, § 2. See Scalia, The doctrine of standing as an essential element of the separation of powers, 17 Suffolk U L R 881 (1983) (quoting pt 1, art XXX of the Massachusetts Constitution, which states that “the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers, or either of them____”).
Nat’l Wildlife, 471 Mich at 639; see also text and accompanying footnotes at pp 293-294 of this opinion.
Nat’l Wildlife, 471 Mich at 639-640.
Nat’l Wildlife, 471 Mich at 634-635.
Id. at 635 (emphasis in original).
Dissenting Opinion
(dissenting). I dissent from the majority’s reversal of the Court of Appeals holding that plaintiffs have standing to bring a claim under the Michigan environmental protection act (MEPA)
The majority’s holding in this case marks the culmination of a line of cases in which the same majority of four (Chief Justice TAYLOR and Justices CORRIGAN, YOUNG, and MARKMAN) has eroded Michigan’s traditional rules of standing.
Beginning with Lee v Macomb Co Bd of Comm’rs,
In Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
In my Nat’l Wildlife concurrence, I wrote: “The majority can wait for a future case that has not drawn public attention to openly and directly declare the MEPA citizen-suit standing provision unconstitutional.”
Now, the majority of four has taken this case as the opportunity to finish what it started in Nat’l Wildlife', to deprive the people of Michigan of the ability to protect the natural resources of this state. I dissent because the Michigan Constitution does not restrict the ability of the Legislature to grant standing to the citizens of this state. Further, the Michigan Constitution places a broad duty on the Legislature to protect the environment, and the Legislature has properly fulfilled its constitutional mandate through its enactment of MEPA.
I. THE MAJORITY OF FOUR’S ASSAULT ON STANDING IN MICHIGAN
Before Lee, no Michigan case had held that the issue of standing posed a constitutional issue.
In Lee, a case involving MCL 35.21, the majority adopted the three-part test set out in Lujan. The majority, quoting Lujan, stated:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Lee, supra at 739, quoting Lujan, supra at 560-561.]
The majority erroneously adopted the Lujan test as a constitutionally based test for standing, under a theory that Const 1963, art 6, § 1, which vests the state courts with “judicial power,”
After overruling Michigan’s traditional prudential doctrine of standing in Lee by adopting the Lujan test, the majority next questioned the Legislature’s ability to confer standing on citizens through the use of statutes
Further, as the majority mistakenly believed, MEPA does not purport to give the judiciary the power of the executive branch to enforce the laws, because that power is given to the people of Michigan.
II. ART 4, § 52 OF THE MICHIGAN CONSTITUTION
Const 1963, art 4, § 52 creates a duty in the Legislature to ensure that Michigan’s natural resources are protected.
Among the reasons why Lee’s article Ill-based standing test or any judge-created standing test should not be applied to MEPA plaintiffs, the most important is that to do so defeats the clear, unambiguous, and readily understand*317 able purpose of art 4, § 52 of the Michigan Constitution.[18 ] Through art 4, § 52, the people of Michigan directed the Legislature “to provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” Art 4, § 52 provides that this mandate serves the people’s express “paramount concern in the interest of the health, safety and general welfare of the people” specifically with respect to the “conservation and development of the natural resources of the state.” Employing the precise words of art 4, § 52, the Legislature enacted MEPA in fulfillment of art 4, § 52’s mandate. [Nat’l Wildlife, supra at 665.]
Before Nat’l Wildlife, this Court had noted that the Legislature conferred standing under MEPA to any person who alleges that a defendant’s conduct has or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust therein.
Inexplicably, the majority of four has decided that the very specific mandate of art 4, § 52 requiring the Legislature to protect the natural resources does not allow the Legislature to grant standing to citizens of the state and, instead, has usurped that mandate in place of the federal case-or-controversy limitation specifically placed by the United States Constitution on the federal courts’ judicial power. I strongly dis
III. APPLICATION
Plaintiff Michigan Citizens for Water Conservation (MCWC) is a nonprofit corporation formed to protect and conserve water resources in Michigan. It consists of approximately 1,300 members; 265 of those members are riparian owners in the Tri-Lakes area of Mecosta County. Among the members are plaintiffs R.J. and Barbara Doyle, who own land on the Dead Stream, and plaintiffs Jeffrey and Shelly Sapp, who own land on Thompson Lake.
In 2002, after receiving the required permits from the Michigan Department of Environmental Quality (DEQ), defendant Nestlé Waters North America Inc. began pumping and bottling water on a 139-acre area on the northern shore of the Osprey Lake impoundment.
Plaintiffs brought suit under MCL 324.1701(1), alleging that defendant’s water pumping and bottling would cause damage to various interconnected streams, lakes, and wetlands north of the Tri-Lakes region. Specifically, plaintiffs alleged damage to the Osprey Lake impoundment, Thompson Lake, the Dead Stream, and wetlands 112, 115, and 301. Plaintiffs sought temporary and permanent injunctive relief in the form of preventing defen
On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded to the trial court.
plaintiffs have standing because of the complex, reciprocal nature of the ecosystem that encompasses the pertinent natural resources noted above and because of the hydro-logic interaction, connection, or interrelationship between these natural resources, the springs, the aquifer, and defendant Nestlé’s pumping activities, whereby impact on one particular resource caused by Nestlé’s pumping necessarily affects other resources in the surrounding area. Therefore although there was no evidence that plaintiffs actually used or physically participated in activities on the Osprey Lake impoundment and wetlands 112, 115, and 301, environmental injuries to those natural resources play a role in any harm caused to the Dead Stream, the Dead Stream’s wetlands, and Thompson Lake, which are used by and adjacent to property owned by plaintiffs and not the subject of a standing challenge. [.Michigan Citizens, supra at 113.]
The majority now erroneously reverses the Court of Appeals decision on plaintiffs’ standing with respect to the Osprey Lake impoundment, and wetlands 112, 115, and 301, holding that “[p]laintiffs failed to establish that they have a substantial interest in these areas, detrimentally affected by Nestlé’s conduct, that is distinct from the interest of the general public.” Ante at 297.
Furthermore, plaintiffs argue that even if MEPA does riot grant standing to any citizen to challenge any environmental harm, plaintiffs have met the majority’s constitutional standing requirements with regard to the Dead Stream and Thompson Lake and that the United States Supreme Court has in the past stated that “[ojnce this standing is established, the party may assert the interests of the general public in support of his claims for equitable relief.”
In some circumstances, countervailing considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiffs claim to relief rests on the legal rights of third parties. See United States v. Raines, 362 U.S. [17, 22-23; 80 S Ct 519; 4 L Ed 2d 524 (1960)]. In such instances, the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the plaintiff. See Pierce v. Society of Sisters, 268 U.S. 510 [45 S Ct 571; 69 L Ed 1070] (1925); Sullivan v. Little Hungtin Park, Inc., 396 U.S. 229, 237 [90 S Ct 400; 24 L Ed 2d 386] (1969). See generally*321 Part IV, infra. Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E.g., United States v. SCRAP, 412 U.S. 669 [93 S Ct 2405; 37 L Ed 2d 254] (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E.g., Sierra Club v. Morton, supra at 737; FCC v. Sanders Radio Station, 309 U.S. 470, 477 [60 St Ct 693; 84 L Ed 869 (1940). [Id. at 500-501.]
Whether dealing with federal constitutional standing or standing granted by statute, I find the rationale in Warth to be persuasive when the plaintiffs have established standing for their own claims.
IV CONCLUSION
By holding that MEPA does not grant standing to plaintiffs to protect all the resources at issue,
[t]he majority disregards the intent of the Legislature, erodes the people’s constitutional mandate, and overrules 30 years of Michigan case law that held that the Legislature meant what it said when it allowed “any person” to bring an action in circuit court to protect natural resources from actual or likely harm.[23 ]
The majority of four has now completed what it started in Lee and Nat’l Wildlife-, it has taken the power to protect the state’s natural resources away from the
I would affirm the Court of Appeals holding that plaintiffs have standing to bring suit under MEPA, because plaintiffs allege that the defendant’s water pumping and bottling activities will irreparably harm Michigan’s natural resources.
MCL 324.1701 et seq.
MCL 324.1701(1) states:
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.
Lee v Macomb Co Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001).
Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992).
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004).
Id. at 653-654 (Weaver, J., concurring in the result only).
Rohde v Ann Arbor Pub Schools, 479 Mich 336; 737 NW2d 158 (2007).
Before Lee, the Michigan standing requirements were based on prudential, rather than constitutional, concerns. See, generally, House Speaker v State Administrative Bd, 441 Mich 547, 559 n 20; 495 NW2d 539 (1993), and Justice Riley’s concurrence in Detroit Fire Fighters Ass’n v Detroit, 449 Mich 629, 643; 537 NW2d 436 (1995).
As I wrote in my concurrence in Lee:
In House Speaker we stated that “this Court is not bound to follow federal cases regarding standing,” pointing out that “[o]ne notable distinction between federal and state standing analysis is the power of this Court to issue advisory opinions. Const 1963, art 3, § 8. Under Article III of the federal constitution, federal courts*313 may issue opinions only where there is an actual case or controversy.” [House Speaker, supra at] 559, including n 20. Justice Kennedy, writing for the Court in ASARCO Inc v Radish, 490 US 605, 617; 109 S Ct 2037; 104 L Ed 2d 696 (1989), acknowledged:
“We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not hound by the limitations of a case or controversy or other federal rules of justiciability ....” [Lee, supra at 743 n 2.]
The Michigan Constitution does not define the judicial power. In the majority’s attempt to delineate the similarities between the judicial power in Michigan and the federal courts, it quotes Michigan Chiropractic Council v Comm’r of the Office of Financial & Ins Services, 475 Mich 363, 369; 716 NW2d 561 (2006), in which the same majority stated: “Our
Lee, supra at 737 (emphasis added).
The legislative branch has the authority to enact laws. Nowhere in the Michigan Constitution does it establish that the Legislature cannot enact laws granting standing. Nor does the Michigan Constitution establish that the judicial branch is the sole authority in determining who may have standing.
Nat’l Wildlife, supra at 639 (emphasis in original).
“[F]aux judicial restraint is judicial obfuscation.” Federal Election Comm v Wisconsin Right to Life, Inc,_US_,_; 127 S Ct 2652, 2684; 168 L Ed 2d 329, 365 (2007) (Scalia, J., concurring in part and concurring in the judgment).
It can even be argued that the Legislature did not give any power to the people, because a reading of Const 1963, art 1, § 1 suggests that the people have retained the power, given that the provision states that “[a]ll political power is inherent in the people.”
Eyde v Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975).
Const 1963, art 4, § 52 provides:
The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.
See, e.g., Michigan Farm Bureau v Secretary of State, 379 Mich 387, 393; 151 NW2d 797 (1967) (addressing principles of constitutional construction).
See Ray v Mason Co Drain Comm’r, 393 Mich 294, 305; 224 NW2d 883 (1975). That MEPA grants standing to “any person” has been unquestioned for more than 30 years. See, also, Eyde, supra at 454; West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741; 275 NW2d 538 (1979); Kimberly Hills Neighborhood Ass’n v Dion, 114 Mich App 495; 320 NW2d 668 (1982); Trout Unlimited, Muskegon-White River Chapter v White Cloud, 195 Mich App 343; 489 NW2d 188 (1992); Nemeth v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641 (1998).
The Osprey Lake impoundment and several of the wetlands at issue in this case are contained within a parcel of land owned by defendants Donald and Nancy Bollman.
Michigan Citizens for Water Conservation v Nestlé Waters North America Inc, 269 Mich App 25; 709 NW2d 174 (2005).
Sierra Club v Morton, 405 US 727, 740 n 15; 92 S Ct 1361; 31 L Ed 2d 636 (1972).
Nat’l Wildlife, supra at 652 (Weaver, J., concurring in the result only).
Concurrence Opinion
(dissenting). I concur fully with Justice Weaver’s dissenting opinion because I, too, believe that the majority’s systematic dismantling of our standing principles is seriously misguided. Moreover, I would find that plaintiffs properly have standing because the evidence they presented soundly demonstrates that the conduct of Nestlé Waters North America Inc. is perpetrating detrimental environmental effects on the ecosystem about which plaintiffs’ complaint is concerned. I reject the sort of “piecemeal justice” the majority would afford plaintiffs because, in my view, there is no justifiable reason for preventing plaintiffs from holding defendants accountable for actions that affect this intricately connected area. I would recognize that, at the very least, areas a citizen does not use — but that are perceptibly affected by the same conduct that is affecting the areas the citizen does use— are encompassed within the citizen’s right to pursue a claim against the offending actor.
Only in this way can we attempt to fully ensure the protection of our environment. It is for this reason that I reject the majority’s statement that “[w]hat we have done is recognized an established constitutional line on our judicial authority to adjudicate what would otherwise be public policy-oriented lawsuits brought by persons who have no immediate stake in the controversy.” Ante at 309. I do not agree that lawsuits brought to vindicate environmentally detrimental conduct are merely “public policy-oriented,” nor do I agree that when an ecosystem of which a person seeking standing is a part is suffering perceptible degradation, the person has no “immediate stake in the controversy.” The divergence between the majority’s viewpoint and my own stems from what is clearly a fundamentally different assessment of the interconnectedness of people and the environment in which we live.
Such a restriction would alleviate the majority’s grave concern about “anyone but a Martian” attaining standing with respect to environmental protection claims in Michigan. See ante at 300.
It should be clear that by appropriating an insightful proposition from Lujan, I am not endorsing the balance of the Lujan Court’s standing analysis. See ante at 295 n 29.
464 Mich 726; 629 NW2d 900 (2001).
471 Mich 608; 684 NW2d 800 (2004).
Dissenting Opinion
(dissenting). The sole issue we decide is whether plaintiffs have standing to challenge the effects of pumping activities by defendant Nestlé Waters North America Inc. on the Osprey Lake Impoundment and wetlands 112, 115, and 301. The majority holds that plaintiffs have failed to establish standing to challenge the pumping in these areas. In dissent, Justice WEAVER reaches the opposite conclusion. In so doing, she rejects the standing test adopted by the majority in Lee v Macomb Co Bd of Comm’rs
PACTS
This case involves a number of interconnected bodies of water in Mecosta County, Michigan. The Osprey Lake impoundment (Osprey Lake) is a man-made body of water created by damming the Dead Stream. South of Osprey Lake is Thompson Lake. Wetlands 112,115, and 301 are located to the west and north of Osprey Lake. The wetlands, the Dead Stream, and the lakes are directly connected to and part of the same shallow, unconfined spring aquifer.
In December 2000, defendant Nestlé purchased the groundwater rights to the area known as Sanctuary Springs, located to the north of Osprey Lake. Shortly afterwards, it announced plans to build a spring water bottling plant. Plaintiff Michigan Citizens for Water Conservation (MCWC) was formed then to represent the interests of the riparian property owners in the area. MCWC has over 2,000 members, including plaintiffs R. J. and Barbara Doyle, who own land on the Dead Stream, and plaintiffs Jeffrey and Shelly Sapp, who own land on Thompson Lake.
In 2001, Nestlé installed four wells on the Sanctuary Springs property. The combined maximum pumping rate permitted for the wells was 400 gallons a minute. Later that year, plaintiffs filed their complaint. The complaint consisted of (1) a claim for an injunction, (2) a claim that withdrawal of water violated the common law applicable to riparian water rights, (3) a claim that
A trial was held on the groundwater and MEPA claims only. It lasted 19 days, and the transcript contains more than 3,700 pages. Ultimately, the trial court held that plaintiffs had stated a prima facie case under MEPA with respect to Osprey Lake, Thompson Lake, the Dead Stream, the Dead Stream wetlands, and wetlands 115,112, and 301. The court found the appropriate remedy to be an injunction against all pumping operations at the site.
In reaching its decision, the trial court made a number of findings of fact. It found that, for every gallon of water diverted or removed by the pumping, there is a corresponding loss of water to Osprey Lake, the Dead Stream, Thompson Lake, and the wetlands. It found that the pumping activities would cause Dead Stream’s surface level to drop two inches and that the Dead Stream wetlands would lose at least 2 inches. It found that wetland 115 would suffer a drop in water level of 1.5 feet, wetland 112 would drop at least 3 inches, and wetland 301 would drop 2 to 4 inches. And it found that Osprey Lake and Thompson Lake would drop by as much as 6 inches. The court found that the result would be that the Dead Stream’s use as a fishery and recreational area would be reduced; that the bottom of the wetlands would become exposed, which could cause the areas to become choked with vegetation; and that a level-control structure would need to be installed to maintain the lakes’ water levels.
Judge SMOLENSKI dissented on the standing issue. He would have found that plaintiffs do not have standing to assert claims over Osprey Lake and wetlands 112, 115, and 301. He believed that, in regard to these areas, plaintiffs had not suffered harm that was different from the citizenry at large. Id. at 83 (opinion by SMOLENSK!, J.).
Both sides applied for leave to appeal in this Court. We scheduled oral argument on the applications, directing the parties to address “only whether the plaintiffs have standing under Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004), to bring claims related to the Osprey Lake impoundment and wetlands 112, 115, and 301.” 477 Mich 892 (2006).
THE STANDING ISSUE
In Lee v Macomb Co Bd of Comm’rs, this Court expressly adopted the standing test articulated by the United States Supreme Court in Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992). The test has three elements:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the*327 conduct complained of — the injury has to be ‘fairly... trace[able] to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Lee, 464 Mich at 739, quoting Lujan, 504 US at 560-561.]
In Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, this Court re-affirmed Lee’s adoption of the Lujan test and applied the three factors to environmental plaintiffs. Nat’l Wildlife Federation, 471 Mich at 628-629.
The resolution of the case before us turns on the correct application of the injury-in-fact component of the test. In applying that component, the majority overlooks a basic purpose of the standing doctrine. As stated in Nat’l Wildlife Federation, the purpose of requiring plaintiffs to show injury in fact is to ensure that “a genuine case or controversy [exists] between the parties, one in which there is a real, not a hypothetical, dispute.” Nat’l Wildlife Federation, 471 Mich at 615. See ante at 293. However, the injury-in-fact requirement is not meant to prevent plaintiffs from protecting the public interest when the concerns underlying the requirement have been satisfied. The United States Supreme Court has instructed:
[S]o long as the [standing] requirement is satisfied, persons to whom [the Legislature] has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. [Warth v Seldin, 422 US 490, 501; 95 S Ct 2197; 45 L Ed 2d 343 (1975).]
The federal courts have consistently applied the principle that, once a plaintiff has established standing to challenge an activity, that plaintiff also has standing to invoke the general public interest. In Citizens Com
Likewise, in Sierra Club v Adams,
In Alaska Ctr for the Environment v Browner,
The majority disagrees and determines that plaintiffs cannot assert the general public interest in support of their claim because they do not have standing to assert a claim. This decision contradicts other findings in the majority opinion. The majority concedes that plaintiffs have standing to challenge the pumping as it relates to the Dead Stream and Thompson Lake. As a result, the majority necessarily decides that plaintiffs have a claim under MEPA. Simultaneously, however, the majority concludes that plaintiffs cannot invoke the general
The majority also finds that the statement from Warth on which I rely is dictum. The statement in Warth echoes similar statements from earlier United States Supreme Court decisions. See Sierra Club v Morton, 405 US 727, 740 n 15; 92 S Ct 1361; 31 L Ed 2d 636 (1972); Fed Communications Comm v Sanders Bros Radio Station, 309 US 470, 477; 60 S Ct 693; 84 L Ed 869 (1940). It would be odd for the Supreme Court to repeatedly rely on this statement in its decisions if it did not consider the statement to be a binding rule of law. Moreover, numerous federal cases that I have discussed proceed as if the statement from Warth is a holding. E.g., Lewis, 542 F Supp at 523; Adams, 578 F2d at 392. If the federal courts treat the statement as precedent, there is every reason for this Court to do so, as well.
The majority implies that the federal cases I discuss should be ignored because the statement I rely on from Warth is unique to the area of federal administrative law. There are numerous fallacies in this position. First, a large number of federal standing decisions, notably Lujan v Defenders of Wildlife, are from cases in which one party is a governmental entity. Thus, it is not surprising that the decisions I discuss include some of these cases. What the majority fails to demonstrate is that the United States Supreme Court has separated its
Second, there is no principled reason for this Court to make such a distinction. In Warth, the plaintiffs challenged a zoning ordinance of the. defendant town, claiming that the ordinance violated their constitutional rights by excluding persons of low income from living in the town. 422 US at 493. In this case, plaintiffs claim that Nestlé’s pumping has injured them by harming the environment. The majority has not explained the relevance of the fact that, in Warth, the defendant is a governmental entity and here, the defendant is a private corporation. In short, the majority has advanced no principled reason for refusing to apply to this case standing decisions from cases where the defendant is a governmental entity.
By refusing to follow the federal decisions that I discuss, the majority indulges in a serious inconsistency. For example, in this case and in Rohde v Ann Arbor Pub Schools,
But Michigan’s current standing test is derived exclusively from federal law. Hence, it should follow that plaintiffs in the instant case and the plaintiffs in Rohde have standing. The majority has adopted only a portion of federal standing law. It would seem rational that either Michigan’s standing law is consistently the same as federal standing law or it is consistently different. If it is the same, the majority should accept and follow the decisions I have relied on here. If it is different, then there is no reason to follow other federal standing
THE MAJORITY’S SEPARATION OP POWERS ARGUMENT
One final point merits addressing. The majority claims that my interpretation of Warth cannot be correct because it “would violate the separation of powers principles upon which ... standing requirements rest.” Ante at 306 n 55. I disagree.
It is uncontested that plaintiffs have standing to assert a MEPA claim challenging defendant Nestlé’s pumping. Accordingly, the issue is not whether plaintiffs have standing to assert a claim under MEPA. The issue is the proper scope of the claim. And the answer is that, because plaintiffs have standing to challenge the pumping, “ ‘the appropriate scope of the remedy goes to the merits of plaintiffs’ claims and is ultimately limited by the statutory authority,’ ”
This Court has recognized that the injury-in-fact component of the standing doctrine is necessary to prevent “the judicial branch [from establishing itself] as first among equals, being permitted to monitor and supervise the other branches, and effectively possessing a generalized commission to evaluate and second-guess the wisdom of their policies.” Cleveland Cliffs, 471 Mich at 616. Injury in fact is the factor that separates hypothetical policy disputes from genuine cases or controversies. Id. at 615. By requiring a plaintiff to
But once a plaintiff has established standing to challenge the activity at issue, the concern that the judiciary is overstepping its bounds disappears. This is because after a plaintiff has shown that the activity caused him or her an injury in fact, any concern that the court is getting dragged into a hypothetical policy dispute evaporates. Rather, a legitimate controversy then exists between the parties, one that the courts can properly resolve. As the United States Supreme Court has stated, “[t]he test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claims ....” Sierra Club, 405 US at 740 n 15. Therefore, once a plaintiff has standing to challenge a given activity, it is not the court’s place to decide whether the Legislature’s grant of a broad cause of action is wise. The Court’s role is simply to adjudicate the dispute.
The law of standing is meant to limit courts to deciding actual cases and to keep them out of the business of “prescribing how the other two branches should function ... .”
Properly applied, the standing doctrine is a shield used to protect the integrity of our tripartite system of government. In its decision today, the majority allows defendant Nestlé to use the doctrine as a sword to insulate its questionable activity from legal challenge. I dissent from this erroneous decision.
542 F Supp 496 (SD Ohio, 1982).
188 US App DC 147, 148; 578 F2d 389 (1978).
Aftosa is also known as foot-and-mouth disease. Id. at 149.
20 F3d 981 (CA 9, 1994).
See also American Littoral Society v Environmental Protection Agency, 199 F Supp 2d 217 (D NJ, 2002) (ruling that the plaintiffs had standing to object to the EPA’s failure to establish TMDLs for New Jersey waters); Sierra Club v Browner, 843 F Supp 1304 (D Minn, 1993) (ruling that the plaintiffs had standing to object to the EPA’s failure to establish TMDLs for Minnesota waters).
I recognize that this Court is not bound by federal caselaw. But specifically because the standing test set forth in Lee and Cleveland Cliffs is derived from federal law, I find federal standing decisions instructive here.
The majority claims that I do not define “the general public interest.” Ante at 304 n 50. As I think is obvious, “the general public interest” here is preventing the destruction of our environment.
The majority portrays my position as creating a loophole in standing jurisprudence. It states that I believe that plaintiffs can assert a claim invoking the general public interest even when they do not have standing. This is incorrect. It is only if plaintiffs have standing to challenge the activity at issue that they can assert the general public interest. In this case, plaintiffs have standing to challenge the pumping. Accordingly, they can also invoke the general public interest to challenge all effects of the pumping on the environment.
By finding that these plaintiffs cannot invoke the general public interest, the majority essentially finds that no plaintiff can invoke the general public interest.
In support of its claim that the statement from Warth is dictum that need not be followed, the majority cites criticism of Warth by Justices Thomas and Scalia. But unless the majority can show that three other justices share the view of Justices Thomas and Scalia, it has no bearing on the continuing viability of Warth and, frankly, is irrelevant.
479 Mich 336; 737 NW2d 158 (2007).
Browner, 20 F3d at 985 (citation omitted).
Scalia, The doctrine of standing as an essential element of the separation of powers, 17 Suffolk U L R 881, 894 (1983).
