*1
held:
particular
Under
case,
plaintiffs
circumstances of this
standing
bring
had
supporting
the suit because their
affidavit
provided
necessary
support
injuries
factual
for the averred
case,
individual members. To resolve this
there is no need to
determine the
standing
constitutional issue of
Michigan
under the
protection
environmental
act.
plaintiffs,
members,
on behalf of their
standing
have
on
principles
standing
basis of the
set forth in Lee vMacomb Co
Comm’rs,
(2001),
Bd
principles
which
are indis-
pensable
system
to our
separation
powers.
constitutional
concurring
only,
Justice
result
stated that
Weaver,
plaintiffs
is correct that
bring
Cliffs
v Cleveland
suit,
legislatively
MCL
established
but
324.1701(1),
protection
Michigan
act
environmental
(mepa),
judge-made standing
regard
test from Lee v
to the
without
(2001).
Comm’rs,
Affirmed and to the remanded circuit court. F Michelle and Neil S. Halley Kagan Reyer, {Jane counsel) plaintiffs. for the & (by Cooney, Mary
Plunkett PC. Massaron Ross and Weber), Karl A. defendants Cleveland Iron Cliffs Company Empire Mining Iron Partnership. Cox, Attorney A. General, Michael Thomas L. Casey, General, Martin, Solicitor and Harold J. Assistant *3 General, Attorney for defendant Department of Envi- Quality. ronmental
Amici Curiae: L. Sax in of the
Joseph support plaintiffs-appellees. John F. Rohe for Camp Quality Michigan.
Ellen J. Kohler for the Tip of the Mitt Watershed Council.
Olson, Howard, Bzdok & PC. (by James M. Olson Howard), and Scott W. Milliken, for William League G. Michigan, Women Voters of etc. J. presents question This case Markman, whether plaintiffs bring have a suit on behalf of their under Michigan members environ- Cleveland Cliffs Wildlife Nat’l Opinion Court of the et We seq. MCL 324.1701 act protection mental (MEPA), circumstances that, particular under conclude deci- affirm the standing. We case, plaintiffs to the this case and remand Appeals of the Court sion proceedings. court for further trial
I. BACKGROUND (Cleveland Company Cliffs Iron Defendant Cleveland Iron Empire defendant Cliffs), in with partnership expand operations planned Mining Partnership, Cleve- Peninsula. Michigan’s Upper Mine in Empire through for a permit applied land Cliffs Quality which of Environmental Department (MDEQ), Even- comment. hearing public to receive public held a permit. tually, the issued MDEQ members, petition filed a Plaintiffs, of their on behalf hearing The hearing with for a contested case MDEQ. and dis- lacked that plaintiffs referee held to the appealed Plaintiffs then the matter. missed affirmed the referee’s Court, which Circuit Marquette plaintiffs’ denied dismissal, Appeals and the Court to appeal. for leave application Ingham Circuit Meanwhile, filed suit plaintiffs (venue County), changed Marquette later was Court Plain a claim under MEPA.1 asserting a count including a pre order and restraining sought temporary tiffs 324.1701(1) provides: MCL may any person action in attorney general maintain an alleged jurisdiction having violation where the circuit court declaratory equitable likely relief to occur for occurred or is air, water, any protection and other against person public resources from trust in these resources and the *4 natural impairment, pollution, or destruction. 324.1704(1) provides: MCL 471 MICH 608 Opinion of the Court
liminary injunction of expansion. further mine The trial court denied the injunction, finding plaintiffs lacked standing. Plaintiffs appealed, and the Court of Appeals reversed. The analyzed Court the statute and found it simply permitted “any person” bring suit. leave,
This Court granted
limited to the issue of
“whether the Legislature can by statute confer standing
on a party who
satisfy
does not
the judicial
test for
standing.
See Lee Macomb
Bd
Comm’rs,
Co
(2001).”3
Mich 726 [
II. OF STANDARD REVIEW Whether a party has standing is a question of law Lee, that we review de novo. supra 734.
III. STANDING First, contrary to the three concurring/dissenting opinions, one of which “disavows” past its support Lee, supra, one of which reaffirms past its opposition to Lee, and one of which maintains its support for Lee while it distinguishing into nothingness, we reaffirm our sup- port for the principles of standing Lee, set forth in and explain the importance of Lee for our constitutional system of separated powers and for preservation of a judiciary operating within proper boundaries.4 may grant temporary The court permanent equitable relief may impose conditions required on the defendant that are protect air, water, public other natural resources or the pollution, trust impairment, these resources from or destruc-
tion.
2 Nat’l
Co,
Federation v
unpublished
Cleveland
Iron
Wildlife
Cliffs
(Docket
opinion,
232706).
memorandum
issued June
No.
(2003).
By separating
govern
sought
disperse
Michigan Constitution
of the
“[T]here
to limit its exercise.
thereby
mental
and
power
judging
sepa
be
liberty...
power
if the
no
[is]
Madi
executive
legislative
powers.”
rated from
Federalist
47.
son, The
No
judicial
the role of the
that both defines
As a term
limits
and execu-
legislative
the role of
branch and
majority’s
support
light
for Lee. It is
gone
continued
conclusion in
Supreme
fact,
agree
wrong
the United States
In
we
with
in this assertion.
2130;
555, 578;
Wildlife,
Lujan
US
112 S Ct
v
Court in
Defenders
does,
(1992), which, although holding,
Lee
fined in the Michigan Constitution, is distinct from both *6 the legislative and executive powers. As former Justice Cooley has written: Thomas province judicial It is power [] private to decide disputes concerning persons; between or legislative but of regulate public concerns, and to make law for the benefit and [Cooley, welfare of the state. A Treatise on the 1886) (Little, Constitutional Co, Limitations Brown & 92.]
The “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; plaintiff who has suffered harm; real the existence genuinely adverse parties; the sufficient ripeness or maturity case; of a eschewing of cases that are moot at any stage their litigation; the ability to proper issue forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of 6 1, § Const art 11. 1, § Const art 2. short, In the deference that the purport give concurrence/dissents Legislature misplaced to the for the deference owed this Court must only first he to the constitution and then to the coordinate branches of government. our state Cliffs v Cleveland Wildlife Nat’l Opinion of the Court issues; the emphasis constitutional unnecessary decision prescriptive opposed upon proscriptive making. “judicial of the critical element the most
Perhaps case or genuine of a requirement has been its power” is a one in which there parties, controversy between v United Muskrat real, dispute, a hypothetical, (1911), Ed 246 250; 55 L States, 346; 31 S Ct US “particular- has suffered a the plaintiff one which Mellon, 262 Massachusetts v injury. personal ized” or (1923). Such L Ed 2d 1078 447, 488; 43 S Ct US that a required has injury generally a “particularized” injury an distinct from must have suffered plaintiff Id. public generally. there would be little injury, a “particularized” Absent branch way in the that would stand debate. every public matter of becoming intertwined a tax closing example, opposed If a taxpayer, legislation might be Legislature, “loophole” an taxpayer opposed expendi- in court. If a challenged that, too, challenged building, might be public ture for a with the manner in which disagreed in court. If a citizen farm administering programs, officials were agriculture or social highway programs, officials’ transportation might those all be programs, officials’ welfare services *7 opposed prison in court. If a citizen new challenged in court. might challenged be disciplinary policies, instance, the result would be In each politically least government judicial branch —the deciding public policy, not of the accountable branches — plaintiff in which a had dispute to a real response harm, in response but personal a distinct and suffered simply prevailed a citizen who had to a lawsuit from To allow government. representative processes in the in this carry responsibilities out its judiciary 471 Mich Opinion op the Court manner is to misperceive “judicial power,” and to the judicial establish branch as a forum giving parties who were unsuccessful in the legislative and executive processes simply another chance to prevail. To allow this authority would judiciary also be to the judicial establish branch as among first equals, being permitted to monitor and supervise the other branches, effectively and possessing generalized a com- mission to evaluate second-guess the wisdom of their policies. As the United Supreme States Court observed in Mellon-. any administration of essentially statute... a public
matter of and not of individual concern.. .. The party [judicial] power who invokes the must be able to only show not that the statute is invalid but that he has immediately danger sustained or is sustaining some injury direct as the enforcement, result of its and not merely that he suffers in way some indefinite in common people generally. with the [allow ... To under a understanding] different would be not to decide a controversy, position but authority to assume a over the governmental co-equal acts of another department, an authority plainly possess. which we do not [Id. at 487-489.] When a broadening and “judicial redefinition of the power” comes not from judiciary itself, usurping power it, that does not belong to but from Legisla- ture purporting to confer powers new upon judi- ciary, the exercise of power such is no less improper. The acceptance by one branch of the expansion of the powers of another branch dispositive is not in whether constitutional has been properly exercised. When the Legislature redefines the “judicial power” by expanding the realm of disputes cognizable by the judiciary, expanded such power on the part of the courts invariably comes at the expense executive, whose policies then subject become to the perpetual review *8 v Cleveland Cliffs Opinion of the Court Su- As the United States and revision of the courts. Wildlife, in v Lujan Court observed preme Defenders L 2d 555, 576-577; 2130; 112 Ct 119 Ed 504 US S (1992): (including public
Vindicating public interest and interest in Government observance of the Constitution laws) Congress the Chief Execu- is the function of the and permit Congress to the undifferenti- tive. ... To convert compliance public in executive officers’ with ated interest right” vindicable in the courts the law into an “individual permit Congress to transfer from the President to the is to important the Chief Executive’s most constitutional courts executed,” faithfully duty, to “take Care that Laws be II, courts, permission § 3. It enable the Art would with authority Congress, position “to assume a over governmental co-equal department,” acts of another “virtually continuing monitors of the wis- and to become always dom and soundness of Executive action. We have omitted; rejected [Citations that vision of our role .... emphasis original.] that, judges must as recall as Mr. Justice Holmes
“We
observed,
‘are
wisely
the other branches of Government
of the
guardians
ultimate
of the liberties
welfare
”
a
the courts.’ Flast
quite
great
degree
as
as
people
Cohen,
83, 131;
1942;
88 S Ct
Despite the remarkable statement
Justice WEAV-
concurrence/dissent,
that the
post
ER’S
opposite
the exact
“expands
judiciary,”
Lee, the
By
majority opinion
is true.
its adherence to
regime
in which the
rejects
constitutional
pow-
can
with extra-constitutional
branch
be invested
branches,
in particular
at the
of the other
expense
ers
need
student of
only
the executive. One
be
casual
unconstitutional, only alleged if the harm has been caused else, illegality question only someone or if the in is a violation of person’s legal right, some other [id.] v Cleveland Cliffs Opinion of the Court federal versy “per- constitution requirement significant upon the most limitation haps American Supreme The Role of the Court power.” (Harvard Press, University System Government 1955) 101. And Antonin Scalia has observed: Justice be, Judiciary the nature of its func
The would “from tions, dangerous political [department] least to the .. . the constitution,” rights not because its acts were correction, binding subject legislative but because particular cases and effect of its acts was limited to Farms, Spendthrift 514 US [Plaut controversies. 1447; (1995), quoting L 115 S Ct Ed 2d 328 Federalist,
Hamilton,
78.]
The
No
concurrence/dissents,
stating
they
would
Lee,
significant
overrule
would erode one of the most
protecting
people
government by
barriers
from
judiciary. As Justice Harlan
warned
his dissent
Flast,
*10
“There
supra
every
is
reason to fear that
public
might
unrestricted
actions
well alter the alloca-
authority among
tion of
the three branches of the
Richardson,
Federal
In United
Government.”
States
166, 188;
2940;
(1974),
418 US
94 S Ct
It is the role of courts to relief to claimants ... suffered, imminently suffer, harm; who have or will actual courts, branches, political it not the role of but that of shape government the institutions of in such fashion as Lujan, supra See at 562. also 471 Mich
Opinion op the Court comply [T]he the laws and the Constitution.... with if, distinction between the two roles would be obliterated courts, invoke intervention of the no actual or imminent needed, merely being subject harm were but the status of governmental organized to a institution that was not managed properly. “judicial power,”
When courts exceed the interests government necessarily of some other branch of must and, observed, implicated already normally be these will be the interests of the As then- executive branch. Professor, put later-Justice Scalia it: standing roughly
[T]he law of restricts to their courts protecting traditional undemocratic role of individuals and against majorities, impositions minorities of and excludes prescribing them the even more from undemocratic role of how the other two branches should function order to [Scalia, serve the interests itself. separa- doctrine as an essential element (1983).] powers, tion L Suffolk U Rev Professor Kenneth Karst has described some of the practical implications relaxing the case or contro- versy requirement greater detail: developments jurisdictional rep-
These doctrine are emergence Chayes resentative of the of what Abram has “public litigation. called law” In the traditional common- plaintiff law model of a there lawsuit is one and one defendant; plaintiff personally lawsuit, initiates parties and on both sides control the conduct of the case; parties’ dispute legal obligations concerns past; requested founded on facts in the the remedies are closely specific rights plaintiff; fitted to the and the If, single single judgment. case culminates in a trial and a however, plaintiffs governmental a class of sues a institu- managers tion such as a school board or the of a state *11 hospital prison, likely diverge or the lawsuit is to from the lawyers may common-lawmodel. Public interest invent the go plaintiffs.... and then find lawsuit out to some Wildlife v Cleveland Cliffs Nat’l Opinion of the Court process “legislative” or “administrative” whole has a even particular parties in whose name look. The interests secondary. Companion [Oxford filed to the suit was seem Court, supra Supreme 458-459.] authority In this of the executive branch is process, by authority judiciary, public policy of the replaced increasingly exclusively by come to be made decisions robes, negotiation compromise in lawyers processes is re- give-and-take representative “rights” analyses the absolutist of individual placed making and local control of decision judges, public increasingly replaced by comes to be unaccountable judicial making. govern- decision One committed to a system important public policy mental which most eventually courts, decisions are made and in increasingly which the become representative processes little than a prelude judicial making, more decision would, certainly, begin by dismantling long- almost preconditions and traditional exercise of “judicial power” concept reflected of stand- ing.10
Thus, Lee, we continue to adhere to and conclude that holding questions Lee was correct its standing implicate separation pow- the constitutional ers, and forsaking proposition imperil “would the constitutional architecture . . ..” Id. at 735. As the United Court in Allen v Supreme States observed 737, 751-752; 82 L Ed 2d Wright, US S Ct (1984): controversy] explicit requirement [of a is the “This case constitu key understanding power.” tional the forms and limits of (Louisiana 1988) Press, McDowell, Curbing at 195. the Courts State judges Standing was restricted to certain forms “so as not to allow the ” good.’ Id. at 172. ‘roving commission to do *12 Opinion the Court standing... component requirement of has a core directly from the Constitution.
derived single basic [T]he of Art. Ill is built on law [Q]uestions separation powers... . . .. idea —the idea of standing inquiry must answered relevant to the be may to the Art. Ill notion that federal courts reference resort, only necessity,” “in the last and as a exercise system only adjudication and when is “consistent with a traditionally separated powers dispute one] and is [the capable through judicial thought of resolution to be [Quoting process.” Chicago & Grand Trunk R Co v Well man, (1892), 339, 345; L 143 US 12 S Ct 36 Ed 176 and Flast, supra 97.] at supra
See also
561.
Lujan,
If the
at its
to
Legislature
permitted
were
discretion
from
jurisdiction upon
any
confer
this Court unmoored
genuine
controversy,
case or
this Court would be trans-
formed in
and
to decide
empowered
character
matters
historically
that have
been within the
of the
purview
Governor and the executive branch. If there is dispute
in
enforcing
over the manner
which the Governor is
or
law,
in
administering
dispute,
course,
such
the normal
If
through
process.
must be resolved
the executive
there
are
wrongfully
citizens who believe
Governor is
or
inadequately
or
enforcing
administering
state’s
consumer
or
or
protection
occupational safety worker’s
compensation
laws,
or revenue
it
is their
right
in
petition
lobby
or
the Governor
order to alter these
It
policies.
right
petition
is also
such citizens
in
lobby
Legislature
order to cause them to alter
Finally,
course,
right
these laws.
it is the
of citizens to
debate,
in
participate
public
the channels of
political processes,
public policies,
in order to influence
or to
office
are
place
public
persons who
more
v Cleveland Cliffs
op
Opinion
the Court
accommodating
points
to their
of view. Unless there is
personally
injured by
an individual who has
been
enforcement or administration
of these
Governor’s
laws, it
the role
normally
judicial
is
of the
branch to
monitor
the work of the
executive
determine
it
carrying
responsibilities
whether
out its
an
acceptable
perhaps
fashion. That the
even
—
with the
acquiescence
purported
executive —has
impose
upon
this role
branch does not
reality. See,
alter this constitutional
e.g., Hayburn’s
*13
(2 Dall)
Case,
409;
1 L
(1792),
US
Ed 436
in
the
which
United
Supreme
accept
States
Court refused to
as part
“judicial power”
responsibility
of its
the
imposed upon
it by
Congress
examining
the
of
the pension claims of
Revolutionary War veterans. The Court concluded that
the Congress could not
to the
“constitutionally assign
Judiciary any duties, but
properly judicial,
such as are
and to be
in
performed
judicial manner,”
410;
id. at
(9
see
States,
also Osborn v Bank
United
22 US
Wheat)
(1824).11
738; L6 Ed 204
certainly,
analyses
Almost
the
of the
invite
concurrence/dissents
“judicial power” questionable ways. See,
further efforts to redefine the
in
e.g.,
Spendthrift Farms, supra,
Congress sought
Plaut v
in which the
require
Supreme
retroactively reopen
judgments,
the
Court to
final
judgments
apparently unpopular
Congress.
that were
with the
Two
justices,
Ginsburg,
willingness
Stevens and
in dissent indicated their
accept
conception
“judicial power.”
this modified
of the
“We must
machinery
government
remember that the
would not work if it were
play
joints.”
(Stevens, J., dissenting),
not allowed a little
in its
Id. at 266
quoting
Pinson,
499, 501;
Bain Peanut Co v
282 US
L
51 S Ct
75 Ed
(1931). Nor,
“judicial power”
when the
becomes mere function of
legislative determination,
any guarantee
authority
is there
that this
will
only
principled way
be broadened. The
have no
concurrence/dissents
addressing
legislative
contract,
efforts
branch to
rather than to
expand,
“judicialpower.”
regard,
In
see the brief amicus curiae of
Joseph
appears
argue
L. Sax at 9 in which Professor Sax
that Const
1963,
6, 13, conferring jurisdiction upon
§
art
“in
the circuit courts
Supreme Court,”
accordance with rules
enables this Court to
Justice WEAVER’S in defin- Michigan and the constitutions United States unconvincing. misap- are She “judicial power” ing both of these constitutions. prehends judicial of the articles of the In the first section constitutions, their Michigan respective and the federal “judicial simply are vested with judicial branches states, judicial constitution “The The federal power.” in be vested one Power of the United States shall Court, and such inferior Courts as supreme time to time ordain and establish.” Congress may from III, The Const, § art 1. Constitution US states, judicial “The of the state is vested exclu- justice § .. ..” Const art 1. sively one court equivalently of these sections is to purpose define — to what has been done earlier the first sections of the scope and executive articles —the of author- legislative ity authority of the branch. That consists exclu- sively “judicial power.” further is said in either of these constitu-
Nothing defining “judicial power,” tions with specifically Michigan Constitution, in the each of exceptions three argument which undercuts of the concurrence/ fixed to the meaning “judicial dissents that there is no *14 susceptible and that it is to constant redefini- power” at the the Const tion discretion of other branches.12 jurisdiction through upon confer the circuit court our rules without “judicial regard power.” to the of the boundaries “judicial power” If can redefined at the of the be behest branches, why, analyses legislative or one under the of executive wonders concurrence/dissents, it cannot be redefined at the behest of the also judicial itself, why should that branch alone be disabled in its branch ability give meaning to new to this constitutional term? There is no why principled perspective reason from the of the a concurrence/dissents expand upon authority by disregarding court could not its own tradi “judicial By upon power.” tional restraints the exercise of the transform- Wildlife v Cleveland Cliffs Nat’l Opinion of the Court 1963, 3, § Legislature art 8 allows either house of “advisory an on the request opinion” the Court issue 9, § art “constitutionality legislation”; Const upon “any taxpayer standing confers state” bring provisions suit to enforce the of the so-called 11, § Amendment; Headlee and Const art 5 em- bring injunctive citizen of the state” to or powers “any proceedings mandamus to enforce the civil service laws of the state. To the extent that the people Michigan, Constitution, through upon their have chosen to confer the judiciary specific potentially three authorities be- yond “judicial power,” unlikely traditional it seems that the intended that people any other such nontradi- authority tional could simply incorporated part be as “judicial a power” simple majority Legis- lature.13
The find relevant that the fed- concurrence/dissents eral diverges constitution from the Constitu- where, III, 2,§ tion in art it states: Cases, Power shall extend to all in Law and Equity, arising Constitution, under the Laws of the States, made, made, United and Treaties shall be which Authority; under affecting their all Cases Ambassa —to dors, public Consuls; other Ministers and all Cases of —to admiralty Jurisdiction; and maritime Controversies to —to Party; which the United States shall be Controversies —to States; between two or more a State and Citi —between “judicial ing power” concept from constitutional stature into a prudential concept, any readily mere to be decided absent discernible standards, give impetus would considerable to a concurrence/dissents powerful judicial expense more branch at the of coordinate branches of government. Kelly interprets provisions, conferring Justice these broader-than- specific law, conferring traditional areas of the broader- any than-traditional area of the law which the standing. chooses to confer such Post at 680 n 5. The draws exactly opposite provisions. inference from these *15 626 Mich Opinion of the Court State;
zens of another Citizens of different —between States; claiming Citizens of the same State —between States, Lands under Grants different and between a State, thereof, foreign states, or the Citizens Citizens Subjects. [Emphasis or added.][14] Contrary concurrence/dissents, to what is in the implicit provision this is not a definitional give seeks to meaning “judicial power.” Rather, III, § to the art ais provision defining the limited power of the federal judiciary, contrast to the plenary judicial power of the state judiciary. respective legislative articles the two analogous constitutions are to the judicial ar- legislative ticles: the article of the Michigan Constitution purport does not to define authority of its (for example, nothing is said therein concerning its authority marriage, divorce, over custody, child child support, alimony, care), or foster legislative while the article of the federal constitution does affirmatively confer authority upon I, the Congress, § article 8. The state judicial power, as with legislative the state power, is plenary, requiring grant no affirmative of authority in the state Constitution. The judicial power, federal on the hand, other as with the federal legislative power, is limited. Such power exclusively function, or a cre- ation, of constitution, and, the federal therefore, must be affirmatively set In fashion, forth. similar the federal judicial power must also be affirmatively forth, set for it function, is also a or creation, of the federal constitution. Thus, Const, III, § US art 2 does not the “judicial define power”; rather it part defines what of the “judicial power” within the United States belongs to the federal judiciary, with the remaining part belonging exclusively 14Although analysis, it is not relevant to the instant several of these provisions subsequently effectively have been rendered null and void the Eleventh Amendment. v Cleveland Cliffs Opinion of the Court III, variously § That art judiciary. to the state is not to employs the terms “cases” “controversies” “judicial particular meaning upon power,” confer a *16 necessary to that are to merely employ but is words allocating “judicial power” of the between syntax the governments.15 the federal and state concurrence/ of a its dissents would confuse the allocation with definition, thereby “judi- define the federal and would by in the manner limit- power” possible cial narrowest ing through it reference alone to the existence of perspective “case.”16Even from the of the concurrence/ dissents, there no more of the permanent aspect is “judicial power” pertain than that it to a “case“? fact, “judicial
In the power” Michigan Consti- tution, above, exceptions with several enumerated “judicial power” is the same the federal constitu- tion,17 it “judicial power” is the same that has 15 States, perceive, “In the Constitution of the United we not the express judicial power, recognition creation of a hut itof as a Rawle, necessary part government.. . .” A of the View of the Constitu 1829) (Nicken, 21, Philadelphia, pp tion of the United States ch 199-200. 16Although suggested Madison at the constitutional convention that the “judicial power” ought Judiciary federal to be “limited to cases of a (Yale Nature,” Farrand, II Records of the Federal Convention of 1787 1966) University, 430, remarkably there is little in the discussion Papers, convention, Federalist the records of the or in other constitutional concerning precise meaning “judicial power.” source materials of the Similarly, virtually concerning meaning there no discussion of this term in the “Official Record” of the constitutional convention of 1961, Michigan’s surrounding inor source materials earlier constitutions. sufficiently We attribute this to the fact that the term was well understood scholars, lawyers, judges, laymen require even time as not to “judicial power” further elucidation. No one would understood essentially majorities empty constitute an constitutional vessel into which pour meanings. were free to in novel 17 accord, (1859); People, In v 6 Mich v Daniels Sutherland Governor, (1874); 185, 193; Hoyt, Mich Risser [July- 471 Mich 608 Opinion of the Court judicia- federal and state practice
informed the both principles ries for centuries.18 These historical were Lee, and we continue to adhere to them recognized today.19 concurring/dissenting
At the same time that justices preservation extol their own commitment environment, they might equal the natural well devote attention to the of our en- preservation constitutional their of a traditional By vironment. diminishment upon “judicial check and balance the exercise of the concurring/dissenting justices would, if power,” their position gain majority, were ever inflict injury upon system separation considerable our and the rule of it powers produced. law has
IV APPLICATION
minimum,
At a
standing consists of three elements:
*17
First,
plaintiff
“injury
the
must have suffered an
in
legally protected
fact” —an
of a
invasion
interest which is
(a)
(b)
particularized,
concrete and
and
immi-
“actual or
”
nent,
Second,
‘conjectural’
‘hypothetical.’
there
injury
must be a causal connection between the
and the
(1884);
Lines,
Freight
Inc,
254,
NW 611
Johnson v Kramer Bros
357 Mich
258;
(1959);
Speaker
Bd,
[W]e see illegal company’s pervasive continuous and dis- that a *18 pollutants nearby charges of into a river would cause waterway of that residents to curtail their recreational use subject them to other economic and aesthetic and would reasonable, entirely proposition the District harms. The Mich 608 Opinion of Court case, enough Court found it was true in this and that is Earth, Inc, injury supra [Friends at 184-185 fact. added).] (emphasis here affidavits from three indi- provided Plaintiffs viduals, organizations of their who reside members mine, they bird-watched, canoed, near the alleged who bicycled, hiked, skied, fished, area, and farmed in the they plan long to continue to do so as as the area “concerned” that unspoiled, they remains are expansion mine will harm their recreational irreparably enjoyment and aesthetic of the area. One affiant also well, alleged adjacent mine, that his on to the property dry new, was almost and he had to deeper construct well due to the local aquifer dropping too low. He alleged this was mining because defendants’ activi- nearly ties. These affidavits are identical to those found Laidlaw, adequate they sufficiently we find meet Lee. the test for forth in standing we set However, we note that plaintiffs may simply rely on throughout these affidavits the entire proceedings prove Subject-matter jurisdiction exists. is a matter that may any be raised at time. MCR 2.116(D)(3). The Supreme United States Court ex- in Lujan, supra at 561: plained requirements party invoking jurisdiction federal bears burden establishing [i.e., fact, injury these elements causa- tion, redressibility]. they pleading Since are not mere requirements indispensable part but rather an of the plaintiffs case, supported each element must be in the way any plaintiff same other matter on which the bears i.e., proof, degree burden of with the manner and required stages litigation. evidence at the successive pleading stage, general allegations At injury factual suffice, resulting may from the defendant’s conduct for on “presume general allegations motion to dismiss we specific necessary support embrace those facts that are *19 v Cleveland Cliffs Opinion the of Court motion, response summary judgment claim.” In to a the however, plaintiff longer “mere the can no rest on such by forth” affidavit or other allegations,” but must “set facts,” purposes “specific which for of the sum- evidence judgment And at the mary motion will be taken to be true. controverted) (if “supported stage, be final those facts must adequately by [Citations adduced at trial.” the evidence omitted.]
Thus, “gen- include in the plaintiff pleadings must that from the allegations” injury eral factual will result brings conduct. If the defendant motion defendant’s summary the must further disposition, plaintiff documentation, support allegations injury the of with the just support allegations as he has to other Finally, make his claim. when the matter comes to up trial, claim, his plaintiff sufficiently support the must meet of including allegations injury, of his burden proof.20 case,
In the to defendants’ motion is response plaintiffs expert, Christopher met the affidavit of in that an of explanation Included document is Grobbel. expected groundwater recharge effect on flow and rate; and the quality; effects on stream flow and water fish, birds, resulting on from expected plants effects extensive habitat destruction. Grobbel’s planned necessary serves to factual provide support affidavit will, of injuries. for the individuals’ averred Plaintiffs course, at trial to meet required proof be their burden regarding alleged injuries alleged and the effects of expansion plans. regard steps It was with to these last two that Justices Scalia majority They Thomas dissented from the Laidlaw. would have found although “[g]eneral allegations injury may pleading suffice at stage, summary judgment plaintiffs ‘specific ... at must set forth facts’ to Earth, Inc, supra support their claims.” Friends at 198. Opinion Court plaintiffs
Because we hold that with- 324.1701(1), find it regard unnecessary out to MCL we 1701(1). § to reach the constitutionality V RESPONSE TO CONCURRENCE/DISSENTS expresses Justice WEAVER dissatisfaction with the plaintiffs fact that have been found possess standing pursue claims, their MEPA not on but grounds the constitutional that she would It prefer. *20 enough plaintiffs seems that it is not that prevail, but victory that their must predicated, upon be not resolution of a mere case or controversy, upon but constitution itself. The it concludes is unnecessary in this case to resolve a constitutional issue can fully where case be resolved on nonconstitu- grounds. tional respect requirements Just as for the standing is an essential element of responsible the “judicial power,” exercise of so too respect is for the need to address constitutional only issues where neces- sary. very Given her different standing, views of it is why understandable major- Justice unlike this WEAVER, ity, would find the question constitutional here an to be easy However, one. notwithstanding the merits of our respective standing, views on constitutional issues— whether easy difficult —are to be avoided where a case can adequately be resolved on non-constitutional grounds.21 Cooley As Justice has remarked: While the courts cannot shun the discussion of constitutional questions fairly presented, they go way when will not out their topics. They weighty
to find such
will not seek to draw in such
collaterally,
proper
matters
nor on trivial occasions. It is both more
respectful
department
and more
to a coordinate
to discuss consti-
questions only
very
tutional
when that
is the
Us mota. Thus
determined,
presented
weight
the decision carries a
with it to
Cliffs
v Cleveland
Opinion of the Court
opinion
of Justice WEAVER’S
aspects
other
Several
KELLY:
comment,
opinion
as does the
Justice
deserve
(1)
Lee, Michi-
that, despite
WEAVERasserts
Justice
constitutional,
but
gan’s standing requirement
Post at
“judge-made”
more than
law.
nothing
rather is
make of this
hard to know what
653 n 4.22 It is
explain
does not
observation. Justice WEAVER
dismissive
any
law
more than
why
“judge-made”
Lee constitutes
constitution, except
interpretation
other
any
is,
“judge-made” law
with Lee. Whatever
disagrees
she
any
law
more
“judge-made”
not constitute
Lee does
case,
extra-judicial
any
disquisition
In
there-
is entitled.
which no
raised, though may
fore,
questions is
it
be
where a constitutional
record, yet
presents
legitimately presented
if the record also
may
ground upon
its
and clear
which the court
rest
some other
thereby
question
judgment,
imma-
render the constitutional
course,
case,
the court
take that
and leave
terial to
will
passed upon
question
a case
of constitutional
to be
when
of,
disposed
and which conse-
cannot be otherwise
arises which
necessary.
upon
question
quently
[Consti-
renders a decision
such
(citations omitted).]
(1868)
Limitations,
7, §
ch
tutional
(1874);
Quider,
Bunbury,
201, 218
Peoplev
also
30 Mich
See Weimer
Bricklayers
280, 289;
(1912);
Co v
&
634
(2) Justice WEAVER asserts that the discus- is, sion of standing by virtue of 4, 52, § Const art “irrelevant to the important questions of Michigan law presented in this case.” Post at 651 n 4, § 1. Art states, in part, “The legislature shall provide for the protection air, water and other natural resources of the state from pollution, impairment and destruc- *22 Cliffs v Cleveland Opinion of the Court pursuant to this that, contends tion.” Justice WEAVER required people provision, “the Michigan’s protection Legislature provide properly Legislature acted resources. The natural through responsibility of its constitutional fulfillment provision ,” and . . . citizen-suit of the MEPA enactment any are irrel- concerns constitutional thus concerned. Post MEPA is evant where 651-652. however, overlooks, Justice WEAVER What upon imposed many requirements that are there are example: Legislature by For the constitution. — legislation pro- Legislature implement” The “shall 1963, 1, § 2. tecting rights. Const art civil — preserve Legislature enact” The “shall laws 1963, 2, § integrity art 4. of elections. Const — implement” of ini- Legislature The “shall the rules 1963, 2, Michigan. art Const tiatives and referendums §9.
— Legislature implement” further rules The “shall 1963, by legislators. art against conflicts-of-interests Const 4, § 10.
— Legislature implement” provisions The “shall pertaining to tax limitations. the Headlee Amendment 1963, 9, § Const art 34.23 undoubtedly making clear what some
While government obligations priorities are, these Legisla- provisions that the do state constitutional implies, may pursue goals, ture these as Justice WEAVER provi- implicit Rather, it is in these whatever means. by goals Legislature pursue that the is to these sions pursue the means. cannot appropriate objects provisions methods that of these “shall do” 51, 53; 5, 10, 12, 1963, 2, 1; 4, 12, 15, §§ § §§ art art art See also Const 2, 4, 7, 9; 7; 20, 21, 28; 8, 14, 15, 17, 18, 20; 6, § §§ §§ art art art art 10, 1, 3, 5, 21, 35, 35a; §§ § 5. art Mich Opinion of the Court are otherwise unconstitutional. Does Justice WEAVER think that the Legislature is empowered under art *23 § 52 to do at all anything long so as it is done ostensibly with goal the of protecting the environment? it Can disregard process due in the criminal prosecution of environmental Can it polluters? disregard the require- just ments of compensation taking property in order to construct a wilderness area? Can it ignore the prohibition against ex post facto laws criminalizing conduct that was legal at the time it took place? (re-
Moreover, can the Legislature, 1, § under art quiring it to implement laws), civil rights the expand “judicial power” by enacting laws allowing “any per- son” to sue for a rights civil violation committed against “any other person,” even if the actual victim chooses not to sue? Can Legislature, the 9, § under art it (requiring implement to tax-limitation provisions), expand “judicial the power” by authorizing “any per- son” in Monroe or Hillsdale to sue prevent a tax increase in Marquette or Escanaba? Can Legisla- the ture, 2, § under art it (requiring to enact election laws), expand “judicial the power” by authorizing “any person” in Kalamazoo or Battle Creek to sue over ballot disagreements in Alpena the city council race? clearly
While identifying an important priority of government, 4, § art 52 does not authorize the Legisla- ignore ture to all provisions other of the constitution in enacting protect laws to the environment. At least to date, “judicial the power” in Michigan has been exer- cised only on behalf of plaintiffs who have suffered particularized actual and injuries.
(3) Justice WEAVER repeatedly
Court,
asserts that this
in exercising
“judicial
the
power,” must act in confor-
mity with MEPA.
653, 654,
Post at
666. In
assertion,
Cliffs
v Cleveland
Opinion of the Court
of the
the duties
misapprehends
fundamentally
she
makes
Constitution
theAs
branch.
judicial
“judicial
the
is to exercise
judiciary
of the
clear,
duty
the
respect
1, and,
doing,
in so
6, §
art
power,”
general
as a
3, §
art
2. While
powers,
separation
“judicial power”
of the
exercise
proper
proposition,
effect to the
faithful
give
judiciary
obligate
will
the latter
it
is
words
—for
judiciary—
power,”
the “legislative
exercises
when to do so
given
be
properly
cannot
effect
such
Just as
itself.
the constitution
contravene
would
branch
legislative
to the
owes deference
branch
judicial
exercised,
too
so
being
“legislative power”
when
to the
owe deference
branch
legislative
does
power” is
“judicial
of the
the exercise
when
branch
legisla-
acquiescence
Even with
implicated.
*24
branches,
branch cannot
the
executive
tive and
beyond
that is
authority
to
arrogate
governmental
itself
constitution.
under the
“judicial power”
of the
scope
the
approach
“textual”
Madison,
The
supra.
v
Marbury
See
is a caricatured
justice
concurring/dissenting
of the
to
empowered
textualism,
Legislature
the
in which
upon
authority
conferring powers
in
its
beyond
act
authority.24
their
beyond
that are also
other branches
responsibility
the constitutional
analysis,
final
In the
the consti-
in accordance with
is to act
judiciary
of the
exercising
separated powers,
of
system
and its
tution
judicial power.25
the
only
and
judicial power
the
24
justice
concurring/dissenting
assumes,
example, that
the
One
for/
Legislature purporting
confer
to
recognize
impropriety of the
the
would
power” to
“executive
authority upon
to exercise the
the executive branch
Hathcock,
use, Wayne
“non-public”
v
471
property
see
Co
for a
condemn
(2004),
Legislature purporting to
445;
the
or of
638
471 Mich 608
Opinion of the Court
(4)
majority’s
Justice WEAVER asserts that
deci-
years Michigan
sion “overrules
case law
held
that the
it
it
meant what
said when
allowed
‘any
bring
in
person’
protect
an action
circuit court
natural resources from actual or
harm.” Post at
likely
support
proposition,
652. In
cites Eyde
she
454;
393 Mich
Michigan,
453,
(1975),
and
NW2d
Comm’r,
294,
Co
Ray
v Mason Drain
(1975). However,
neither
decisions,
NW2d
of these
issued in
aftermath of MEPA’S passage, offer the
slightest support for the
conclu-
concurrence/dissent’s
case,
the present
Eyde
sion. Unlike
neither
nor Ray
concerned
issue of
and neither
involved
plaintiffs concerning
any question
whom there was
Rather,
standing.
Eyde
Ray,
this Court did
nothing
describe,
more than
passing,
substance
of the
provisions
various
act. Such
new
state-
ments do
even
to the
rise
level of dictum since in
neither Eyde nor
did this
Ray
purport
Court even
upon
comment
propriety
provision,
much less comment
it
upon
approvingly.
state-
ments in
Eyde
make no
Ray
pretense
being
law;
statements of
they
merely
are
passing, but accu-
rate, descriptions of
was
what
contained in
new act.
Because of what
these statements constituted —mere
mandate,”
“people’s
read in connection with the ultimate
which is that
There,
people”
found in their constitution.
“we the
have created for
government
which,
separate provisions,
themselves a
in at least four
they
clearly
possible
govern-
forth as
set
that the boundaries of
seriously.
3, 2;
4, 1;
§
mental
are to be
§
taken
Const
art
art
5, 1;
§
§
art
1.
art
Further,
concurring/dissenting justice
considerably
seems
*25
less
deferring
“people’s
enthusiastic about
the
in
to
mandate”
the context of
52-54;
Mining Act,
the Sand
Dep’t
Dune
see
at
the
Preserve
Dunes v
infra
Quality,
508, 530-532;
(2004),
Environmental
471 Mich
By ensuring that
“executive
erly
by
Legislature,
expanded
unpersuasive
additional
find
is for these same reasons
we
It
support
of her assertion
cited
Justice Weaver
cases
concerning
Michigan
overruling
years
case law”
is
“30
652 n 3.
under
Post at
mepa.
justice Michigan
concurring/dissenting
references
Other
support
equally unavailing
conclusion. In Detroit
of this
law are
case
(1995)
629, 643;
Detroit,
Fighters
power” improperly contracted, not be this Court is defending the constitutional structure. In similar fash- ion, the United Supreme States Court in Marbury v Madison, concluded that a supra, congressional grant of authority to the Court to issue writs of mandamus could not be exercised because the constitution did not allow the original jurisdiction of that Court to expanded by be mere statute. As Chief stated, Justice Marshall “It is a proposition too plain contested, to be that the constitu- tion controls any legislative act repugnant to it.” Id. at 177. The grants Constitution this Court the “judicial power” nothing more and nothing less—and —
neither the Legislature nor this Court possess itself authority to redefine these limits.28 respect In at least “judicial one her observation that can activism —in disguised judicial restraint,” post be agree at 674—we with the concurring/dissenting justice. Employing language judicial restraint, of summarily jettison she would (understandably) in the popular name of an enduring cause one against judicial of the most activism, bulwarks requirement requirement of only that courts decide actual —the parties cases and genuinely controversies between real with adverse By dismantling interests. upon courts, this historical constraint she would allow the represen branch —the least accountable and least government tative branch of potentially sharply become involved in a —to expanded range public policy disputes. many of To Americans of a wide range political jurisprudential views, of this would exacerbate the recent equilibrium trend in which the judiciary, constitutional between the government, and the other branches of increasingly has become imbal anced and distorted in favor of the former. The judiciary would restrict to its traditional role of resolving actual cases and concurring/dissenting jus- controversies. The potentially any tice person opposed would allow aspect to some of governmental policy, i.e., persons, most to sue in order to substitute then- personal preferences governmental policy of ought what to be for the policies actually produced by representative processes government. of concurring/dissenting justice The advantage would take of the relative public understanding lack of precepts how traditional main- separation tain the powers constitutional to self-characterize her position “judicial restraint,” as one notwithstanding support her eliminating underpinnings one of the genuine judicial fundamental Cliffs v Cleveland Wildlife Nat’l Opinion of the Court opin- KELLY’S (6) Justice understand to attempting In great takes that she recognize ion, important it is that, all despite 676 n proclaim, post care overruling toto” not “en she is contrary appearances, part on analysis effect of this The Lee. the freedom enjoy her to is to allow
concurring justice it is standing when principles traditional discard to reassert such case, and then so, as in this to do useful useful. Lee, equally when per principles, *27 and decisionmaking is standardless concurring justice’s rule of law.29 a predictable with inconsistent consti- (7) of novel forth a torrent KELLYsets Justice principal whose opinion in her propositions tutional of the abandonment justify is to apparently purpose (“to the open wide of principles traditional doors”) environ- the realm of least in courthouse —at to to see whether will have wait people law. The mental the of to abolition is as amenable concurring justice the of the more the law. A few other areas of standing in that inhabit law of constitutional propositions creative her opinion: — although may require an it “judicial power,” The lawsuit, bring injury in order to
individualized federal bring Post at a state lawsuit. require the same to does not justice’s position concurring/dissenting certainly, if the Almost restraint. nationally, Michigan, prevail or ever to on were force, quickly a far more dominant government become would branch of government of would representative accountable branches and the far less relevant. become next case in which she at least in the in the next case—or Doubtless anything “any person” suing “any person” about is less enthusiastic case, that, instant justice opine unlike in the concurring will at all—the “strong personal have the same plaintiffs case do not in that interests,” post ‘standby manifestations, ‘passive value’ use’ called advocacy vigorous” as here. “sincere ensure the same that will pursued vigorously are suits that environmental interests ensure “These 688. claim.” Id. at strong personal in their by people belief awith 471 Mich Opinion of the Court Although correctly upon Justice remarks Kelly 683. differing governments, of the federal nature and state she why any fails to these demonstrate differences have rel- “judicial her power” evance at all for conclusion that the systems. differently should be these understood within — subject-matter jurisdiction The of state courts is “plenary,” and, therefore, “judicial power” the state is “plenary.” may plenary at 683. That be Post there state any authority problem “to address social that threatens the public “judicial power” does not welfare” mean that encompasses authority. all such 683. Id. at
— only “people” The have “execute” the they permitted environmental laws when are sue might thought court. Post at One 679. that it was laws, responsibility executive branch’s to “execute” the they “people.” and that so did on behalf of the — gist separation powers principle, of rather than governmental power by to limit the exercise allo- cating specificresponsibilities among the three branches of government, may ensure that individual “one simultaneously hold office in than more one branch government.” Thereby, Post at concurring 681 n 6. justice pillars system would transform one of our (albeit limited, government constitutional into the trivial correct) probably proposition legislator *28 that a cannot at the Department same time serve as Director of the of Commu- nity Health.
— “judicial Constitution allows the power” to be “disputes,” merely exercised over all and not “cases” or “controversies.” Post at 685-686.Aside from the concurring justice absolutely fact that the guid- affords no “dispute” ance on what a constitutes or how it differs from clearly a “controversy” although does, “case” or it in her — language, no mind—she invokes constitutional no consti- history precedent tutional and no constitutional for this Indeed, blithe assertion. the fact view of Cliffs v Cleveland Wildlife Nat’l Opinion op the Court standing all not address apparently does Constitution “dispute” as a why even so much perspective, is from her required?
— doctrine of for the An effective substitute at 686. mootness. Post ripeness of the doctrines are — kind from “judicial power” different in is The state applies alone “judicial power” the latter because the federal diversity at 684. This is cases. Post questions and to federal concurring opinion in sequitur in the simply more non one relevance. search of
— requirements are a func- and state Federal judges in these are selected which tion of the methods considered, “Everything it is not systems. at 684. Post standing in state qualifications for surprising that Id. at 684. We than in federal courts.” broader courts are nothing in their method selection aware of are “judicial power” exercising the justifies judges in state federal than according rules and constraints to different judges. — viewing Court, although it barred from is This dimension, may
standing as an issue of constitutional contrary legislative provision, nonetheless, in the face of standing . .. Post at power and limit its own “constrain is, may not countermand the words That a court 689. constitution, may it but do the basis of the on as to when words of its own discretion so on the basis ignored. should be
— to curb government is “ill-advised An institution guise respect for another authority under the [own] its “Ill-advised,” perhaps, government.” at 689. Post branch expected governmental institutions are era in in an which if possible; not so “ill-advised” much to accrete as scope of their constitu- premise to act within their tional charter.
—
“require” that the
Separation
powers principles
Legislature’s
Post at 689.
judiciary “respect” the
decision.
Marbury
point.
True, although only up
At least since
*29
(8) Justice KELLY that argues separation of pow provision ers of the Michigan Constitution should not be read in an “overly rigid” fashion. This is essentially euphemism proposition for the that this provision should not be read very to mean much anything hardly all. It is an “overly rigid” reading suggest that, person “[n]o exercising powers of one branch shall powers exercise properly belonging another branch” 3, § in art judge means is limited to exercising “judicial power,” and not powers of another branch. This is made explicit 6, § in art 1.30
Moreover, Justice KELLY’S understanding
sepa-
ration of powers
confused,
as reflected in her citation
of the dissenting opinions in Judicial Attorneys Ass’n v
Michigan,
307;
(1998);
constitutional
*30
of
the
state
operations
areas and
subject
the same
blending
gov-
a
of
occasionally involve
may
government
in the interaction
as,
example,
for
operations
ernmental
regarding
and executive branches
legislative
the
between
budget.
of a
But
preparation
or the
drafting
the
of a law
or functions.
blending
powers
from a
of
is distinct
there is between
cooperation
much
However
legislative
branches,
only
exercises
the executive
only
the executive exercises
may
separated powers
the exercise of such
While
power.
generally
understood
overlap
being
often
—this
“sharing”
is no
of checks and balances —there
realm
only
There
powers.
or executive
legislative
governmental power.
sharing of the sum of all state
(9)
concepts
KELLY makes much
Justice
general, yet fails
attorneys
and private
citizen suits
they
indicates that
history
of such suits
note that
have suf-
only by individuals who
brought
have been
today.
understanding
This
continues
injury.
fered an
correctly notes that “citizen suits”
Justice KELLY
history through relator
long pedigree
English
have a
however,
explain,
She fails to
and informers’ actions.
strangers
such actions were
brought
that those who
themselves either
action,
possessed
but
through
assignation
injury
a direct
through
use of
injury in fact. The historical
government’s
Su-
by the United States
explained
actions was
such
Agency Natural Resources
preme Court in Vermont
774-777;
Stevens,
120
ex rel
529 US
United States
(2000), using
“qui
the label
1858;
Qui appear to have tam actions century, private individuals who had 13th when end of the royal began bringing in the courts injury actions suffered Mich
Opinion of the Court See, on both their own and the e.g., Crown’s Prior behalf. (1300), reprinted Lewes v.De Holt Society in 48 Selden (1931). Suit in capacity this dual getting was device for private their respected royal courts, claims into the which generally only involving entertained matters the Crown’s Milsom, Trespass Henry interests. See from III to Edward III, Special Q. Part III: More Conclusions, Writs and 74 L. (1958). Starting Rev century, in the 14th as the royal began jurisdiction courts involving extend to suits wholly private wrongs, qui the common-law tarn action gradually disuse, fell although into it seems to have re- technically mained available for several centuries. See 2 W Hawkins, (8th 1824). Pleas of the Crown 369 ed. time, however,
At about the same began Parliament enacting explicitly provided statutes that qui tam suits injured parties [which] allowed to sue in vindication of (as their Crown’s), own see, e.g., interests well as the *31 Providing Remedy Statute Wrongfully for Him Who Is (1400). Admiralty, IV, Pursued in the Court of 2 Hen. ch. 11 [Emphasis added.]
Accordingly, the Court held that one who brings a relator suit has standing because he is the assignee of a claim and may assert the injury-in-fact by suffered the assignor, which is normally government. the Id. at 773. In cases, such concluded, Court the government’s injury-in-fact suffices to confer on the indi- vidual relators bringing suit. Id. at 774.
Similarly, a review of modern citizen suit cases al- most always includes a review of standing in addition to a review of the statute that confers the right to such See, suits. e.g., Gwaltney Ltd Smithfield, v Chesa- peake Bay Foundation, 49, 65-66; 484 US 376; 108 S Ct (1987). L98 Ed 2d Further, like suits, citizen suits by private attorneys general do not involve those com- pletely divorced from injury; rather, an they involve those who have suffered an injury generally “noneco- — nomic” injuries who have been provided an incen- —and Cleveland Cliffs v Opinion of the Court advance the bring a lawsuit to by legislature tive Sewerage Authority Middlesex Co interest. See public 2615; Ass’n, 1, 17; 101 S Ct Clammers 453 US Nat’l Sea (1981). Supreme 2d As the United States 69 L Ed noted, “directly of the doctrine is point Court counted on to vindicate law victims can be injured any prob without private attorneys general, as injured more by plaintiffs attendant suits upon lems Protection remotely.” Corp, Holmes v Securities Investor L 2d 258, 269-270; 1311; 112 S Ct 117 Ed 503 US (1992) added). (emphasis
Therefore, assertions, the contrary to Justice KELLY’S attorneys or private of citizen suits actions use of tradi- general application does not undermine anything, If the use of standing requirements. tional application require- of those supports such suits ments, by private attorneys citizen and actions suits grounded injury, in a general always private been directly assign- as a of an whether suffered result ment another.
(10)
Court’s deci-
referencing
Justice
WEAVER,
the Dunes v
Environmental
Dep’t
sion
Preserve
(2004), derides
because both environmental statute suggests legal analysis less a on the part justice than a concurring/dissenting political statement. It is this Court’s responsibility simply uphold to the law constitution, and the promote any to or impede particular legislative interest, cause or popular however Rather, unpopular. obligation of this Court is simply say what the law is. And that exactly what justices in majority have sought do in this case, as they sought have each to do—however imperfectly every coming case before this Court. —in
The majority cannot read the concurring/dissenting justice’s conflation of wholly legal unrelated issues single volley derisive as anything other than implying that this Court obligation has some to decide environ- mental eye issues with an toward their results.32 How- ever, that the issue of has arisen here is, context MEPA from the perspective of the majority, utterly irrelevant. The majority would addressing be this critical constitutional issue in identical terms if it had arisen in any subject law, other area of the and it would be no more of an upon “assault MEPA” than the present decision is an “assault upon MEPA.”
Further, referenced, the other case Preserve the Dunes, in majority which this same has also allegedly “assaulted this Court addressed the following MEPA,” specific legal question MEPA authorizes a col- —whether lateral action to challenge Department of Environ- mental Quality’s decision to issue a permit under the Act, Sand Dune Mining 324.63701, MCL enacted perspective, In majority the interest of we note once more that the plaintiffs plaintiffs— has found that in this case—environmental possess standing pursue They prevailed. their cause of action. In identifying however, standing, such has found it to exist precepts under traditional and has avoided the resolution of prematurely a constitutional issue that it need not address. See n 21. *33 v Cleveland Cliffs Opinion of the Court action to chal- Legislature, where that collateral seeks unrelated to lenge permitting process flaws in the polluted, likely whether the conduct involved has or will only natural resources. can invite the reader pollute, We read Dunes to opinion of the instant to also Preserve the opinion represents determine whether that an “assault on or an honest and effort to impartial instead MEPA,” the limited question statutory interpretation resolve in that presented case. “assault on MEPA” rhetoric
Justice WEAVER’S becomes groundless recognizes even more when one that she is majority having dissatisfied with the for concluded that resolving it is MEPA at all in unnecessary interpret standing controversy. Instead, we conclude that present Thus, plaintiffs possess standing grounds. on traditional end, in the MEPA” amounts majority’s upon “assault merely to the from majority refraining interpreting MEPA.33
VI. CONCLUSION
In
an
addressing
issue that
does not
today,
resolve
Justices WEAVER and KELLY would allow
grant
in environ-
plaintiffs standing
lawsuits, regardless
any injury
mental
of whether
has
“judicial
been suffered. Under this view of the
power,”
“any
for
person,”
example,
enjoin “any
could seek to
mowing
from
person”
gas-powered
his lawn with a
activity
air
allegedly
pollu-
mower because such
creates
tion and
fuels
other
are
uses fossil
when
alternatives
“Any person”
“any person”
available.
could sue
for
using
property,
allowing
too much fertilizer on his
too
33 Despite characterizing
majority’s
discussion on
in
dicta,”
post
point
agree,
“simply
we
section
with which
Kelly simultaneously,
perplexingly,
that this case
Justice
concludes
proposition”
“stands for the
addressed
this section. Id. at 677.
[July-
much runoff from a feedlot on his “any using could from excessive person” person” sue pesticides garden amounts of his home or or farm. for “Any person” “any person” improperly could sue “Any person” of used oils. disposing petroleum-based “any backyard could person” improper grilling sue practices, sprays propel- excessive use aerosol lants, watering.34 or wasteful lawn *34 can that only concurring/dissenting
We assume justices’ casualness about traditional eliminating rules they of that are not aware of suggests fully that a they world would create. It is world which conduct any allegedly affecting might the environment in litigation anyone, anywhere, reason, result if for any aggrieved. felt potential abuse under such a explains circumstance at least one of the practical why the regulatory reasons enforcement of laws has generally been limited to officers of the executive branch, why, immemorial, standing and from time has an required injury part individualized on the of a plaintiff. The concurring/dissenting justices would re- place judgment and of discretion the executive lawsuits, branch with an enhanced regime regime judges increasingly which their substitute own Governor, General, views for those of the the Attorney appointees. and their response that, In “[a]fter to Justice assertion more than Weaver’s years, spawned unmanageable MEPA has not an stream of citizen- ,” post majority simply suits . . . n reiterates that there holding “any
has never been decision of this Court under MEPA that person” “any person.” response could sue In to Justice Kelly, majority simply purported notes that it is underwhelmed safeguards “parade that she identifies to what she characterizes as our of horribles.” Id. at 690. It is fortunate for the people Michigan that, being, at least for the time their freedoms and fortunes will not be dependent upon “safeguards.” such v Cleveland Cliffs Concurring Opinion Weaver, J. that, This Court reaffirms and Lee concludes under case, circumstances of this plaintiffs, on behalf of their members, possess standing pursue the instant Thus, cause of action. affirm we the decision of the Court of Appeals and remand to the trial court for proceedings consistent with opinion.
Corrigan, C.J., and JJ., Taylor concurred Young, J. Markman, with J. in result I (concurring only). concur in
Weaver, only the result of the majority opinion. I would hold 324.1701(1) plaintiffs under MCL of the Michigan protection environmental act (MEPA) an bring enjoin action to mining activities plain- tiffs allege will harm irreparably natural resources.
I dissent from the majority’s analysis of “standing” “judicial power” analysis because this utterly ig- nores the will of the people Michigan expressed art 4, § 52 of our Constitution that
[t]he development conservation and of the natural resources hereby the state are paramount public declared to be *35 health, concern in the safety general interest of the and welfare people. legislature of the provide The shall for the protection air, water and other natural resources of destruction.[ pollution, impairment the state from and Pursuant to this constitutional provision, the people of Michigan required provide for protection Michigan’s of natural The resources. Legislature properly acted in fulfillment of its constitu- 1 majority ignores 4, The § the constitutional mandate of art 52 and attempts to standing distract the reader with a discussion of federal judicial power, federal important a discussion that is irrelevant to the questions Michigan presented law in this case. 471 MICH 608
652
Concurring
Opinion by
J.
Weaver,
through enactment of MEPA’s
responsibility2
tional
provision
provides:
citizen-suit
may
attorney general
any person
maintain an
The
having jurisdiction
in the circuit court
where
action
alleged
likely
occurred or is
to occur for declara-
violation
any
protec-
tory
equitable
against
person for the
relief
air, water,
and other natural resources and the
tion of
pollution, impairment,
public
in these resources from
trust
added).]
324.1701(l)(emphasis
[MCL
or destruction.
Legislature,
The
the intent of the
majority disregards
mandate,
constitutional
and over-
people’s
erodes
that held that the
years Michigan
rules 30
case law
“any
Legislature meant what it said when it allowed
bring
protect
an action in circuit court to
person”
likely
natural
from actual or
harm.3
resources
case,
In this
this Court
asked the
specifically
question
Legislature may
standing
whether
confer
under
324.1701(1) MEPA persons
satisfy
MCL
on
who do not
test
articulated
Lee v
Comm’rs,
726;
Macomb
Bd
Mich
Co
464
629 NW2d
(2001).
900
to not decide this
purports
2
Court,
previously recognized by
“Michigan’s
As
Environmental
Legislature’s response
Protection Act marks the
to our constitutional
development
commitment
to the ‘conservation and
of the natural
re
”
Comm’r,
Ray
294, 304;
sources of the state.’
v Mason Co Drain
393 Mich
(1975)
52).
(quoting
§
by judicial away meanings statutes, decision which construe meanings legislature phrase or find in them the held. The never meaning, simply, sometimes used as the law that becomes estab- by precedent. lished Judges easily meanings can as with as find little restraint new they constitutions that the ratifiers never intended as can find new meanings precisely majority’s in statutes. This is effect of decision in Lee. Mich 608 Opinion Concurring Weaver, J. openly attention5 to public not drawn
case that has *37 standing provision declare the MEPAcitizen-suit directly unconstitutional. standing of Lee’s majority’s application
The judge- imposes unprecedented, to these plaintiffs test the plaintiffs’ on MEPA access to made restrictions dis- majority’s decision overrules without courts. The all future imposes on years precedent, cussion 30 establishing standing MEPA the burden plaintiffs Lee, undermines the test of under the restrictive 4, § art mandate Const people’s expressed protection for the Legislature provide the pretending natural While to Michigan’s resources. majority’s application the “judicial power,” limit its actually case ex- judicial standing Lee’s test at the of the judiciary expense pands consti- Legislature by undermining Legislature’s natural authority protect tutional to enact laws resources. “any to adhere to MEPA’s majority’s
The failure far-reaching consequences standard will have person” access to courts in more than plaintiffs’ and will affect example, arena. For while re- just environmental grounds, Appeals the case on other the Court of solving unpublished opin- in Cuson v Charter Tallmadge Twp, justifiable regard generated This case has considerable and concern standing ing uphold Legislature’s grant would whether this Court 324.1701(1), “any person,” protect sue that authorizes MCL legislatively declare such environment or whether Court would by extending standing of Lee. conferred unconstitutional the rationale Attorney Michigan that the General’s office on behalf of the Note state Court, argues Quality, appellee Department before this of Environmental may grant standing persons Michigan Legislature that the who do not many opposing among test. Included amicus meet the Lee Milliken, the extension of Lee is William G. the Governor of signed Apparently, not and MEPA into law. the executive branch has who majority’s fear of MEPA citizen-suits. does not share the v Cleveland Cliffs Concurring Opinion Weaver, J. (Docket per May curiam, ion issued No. applied plaintiffs Lee to note that the did not 234157), enjoin under Lee to future violations of Open Meetings panel seq. Act, MCL 15.261 et § 11(1) Open Meetings did not Act, address of that provides: which public body act,
If a
complying
is not
with this
attorney general, prosecuting attorney
public
in which the
body serves,
person may
or a
commence a civil action to
compel compliance
enjoin
or to
noncompliance with
further
[Emphasis added.][6]
this act.
Thus, it cannot be denied that this case concerns more
people’s
Leg-
than the
constitutional mandate that the
protect
Legislature’s
islature
the environment and the
attempt through
provision
*38
MEPA’s citizen-suit
to do so.
every statutory grant
standing
It also concerns
7
standing
is broader than Lee’s
test.6
Consequently,
majority’s
I
while
concur
with
plaintiffs
standing
bring
conclusion that the
have
majority’s imposition
action,
this
I dissent from the
judicial standing
Lee’s
Further,
test in
I
this case.
disagree
majority’s inappropriate suggestion,
with the
inapplicable
law,
its reliance on
federal
that the
plaintiffs’ victory may be short-lived. Ante at 630-631
People
Turbbergen,
App
Also see
v Van
and 631 20. under are well-established MEPA. Legislature has that the
I would conclude a cause of action authority to create the constitutional any person on without to confer and judge-made through interference Court’s Supreme Leg- conclude that the I would further standing tests. “any person” on confer expressly islature did 324.1701(1). I hold that Therefore, would under MCL 324.1701(1) to MCL standing pursuant plaintiffs of MEPA.
I. FACTS Federa- plaintiffs, In the National Wildlife this case Coalition, Peninsula Environmental Upper tion and the defendants, Cleveland Cliffs Iron Com- enjoin seek to from Mining Partnership, pro- Iron pany Empire August issued in ceeding permit under Quality. allege Plaintiffs Department of Environmental mining pro- of iron ore activities expansion harm wetlands irreparably will permit under posed and streams.
II. MEPA Michigan through the 1963 Constitu- people The provide tion directed the expressly The Constitution of the environment. protection provides: development of the natural re- conservation *39 hereby paramount declared to be of sources of the state are health, safety and
public concern in the interest of provide people. legislature shall general The welfare air, protection of the water and other natural for the pollution, impairment and of the state from resources 4, § 52.] art [Const destruction. Nat’l Wildlife" v Cleveland Cliffs Concurring Opinion by Weaver, J. part mandatory
As of its fulfillment of this constitu- duty, tional enacted the envi- protection Hwy ronmental act State Comm v (MEPA). (1974).8 Vanderkloot, 159, 183; 392Mich NW2d Having every public agency “[n]ot determined that proved diligent to be and dedicated defenders of the Legislature through pro- environment,” the MEPA “has vided sizable share of the initiative for environmental segment society law enforcement for that most directly public.” Ray, supra affected—the and Eyde, supra. previously noted, As this Court provision “signals citizen-suit change of MEPA a dramatic practice important from the where the task of environmental law enforcement was left to administra- agencies opportunity participation tive without the groups Ray, supra of individuals or of citizens.” at 305. MEPA broadly defines protect who can sue to environment providing: attorney general any person[9] may maintain an having jurisdiction
action the circuit court where the alleged likely violation occurred or is to occur for declara tory equitable against any person relief protec for the air, water, tion of the and other natural resources public pollution, trust in these impairment, resources from 324.1701(1) added).] (emphasis [MCL or destruction. explained This Court has that MEPA creates “an inde- pendent granting standing private action, cause of individuals to maintain actions in circuit court for declaratory equitable against anyone and other relief MCL mental Protection mental Protection ship, corporation, Mepa The definition of 324.301(g) cqdified of the act defines association, Act, Act, “person” of which MCL 324.101 et part 17 of the Natural Resources and Environ governmental entity, in the Natural Resources and Environ mepa “person” is a seq. part applies throughout as “an or other individual, partner legal entity.” the act. *40 608
658 Concurring Opinion Weaver, J. Eyde, Michigan’s environment.” protection for the Indeed, held that this Court has at 454. supra standing “any person.” Ray, supra on language confers 304-305. JUDICIAL STANDING TEST
III. MICHIGAN’S
a
standing,
person’s
a court will not hear
Without
Unlike
to the court are closed.
complaint
doors
—the
courts,
to the
governing
other substantive rules
access
standing
person bringing
rules focus on the
claim
party
than the claim itself.10
has a
rather
“Whether
justiciable controversy
sufficient stake
an otherwise
controversy
of that
what
judicial
to obtain
resolution
referred to
traditionally
question
has
been
as
Morton,
v
405
standing to sue.” Sierra Club
US
(1972).
731-732;
1361;
L Ed 2d
925 S Ct
31
636
Michigan,
judicial
standing
In
test for
has focused
constitutional,
prudential,
opposed
on
as
concerns.
Lee,
at 743
Fire
supra
concurring);
J.
Detroit
(Weaver,
Detroit,
629, 643;
Ass’n v
Mich
Fighters
449
537 NW2d
11
(1995) (Riley,
concurring).
436
J.
Prudential concerns
essentially
self-governance
are
“matters of
Seldin,
490, 500;
2197;
. . ..”
v
Ct
45
Warth
US
95 S
(1975).
L
Michigan
Ed 2d 343
Before
courts will hear a
case,
they
party’s
consider whether “a
interest
.
litigation.
outcome
. will ensure sincere and
vigorous advocacy.”
Bd,
House
Admin
Speaker
State
Cohen,
1942;
In Flast v
S Ct
In prudential courts have often drawn from federal discussing case law prudential *41 Id. at standing requirements. 559. Yet the only by federal courts are bound not judicially imposed considerations, prudential but also federal constitu- standing tional limitations on imposed by article III of Warth, the federal constitution.12 supra 498. Federal constitutional limitations standing involve “whether the plaintiff has made out a ‘case controversy’ between himself and the defendant within the meaning III of article of the United States Constitution.” Id. at 498.13
The United
Supreme
States
Court has made clear
that article Ill-based constraints
apply
every person
who
jurisdiction.
seeks to invoke federal court
Bennett v
Spear,
154, 162;
1154;
520 US
117 S Ct
L Ed 2d
137
281
12
standing
The first mention of
as an article III limitation was in Stark
Wickard,
(1944).
559;
Sunstein,
321 US
64 S Ct
Treaties or which shall be under their —to affecting Ambassadors, public all cases other Ministers Consuls; admiralty Jurisdiction; all Cases of and maritime —to —to Party; Controversies to which the United States shall be a —to mqre States; Controversies between two or a State and —between State; States, Citizens of another Citizens of different —between Mich 608 Opinion Concurring Weaver, J. (1997). However, Supreme United Court has States are clear that article Ill-based constraints also made constraints, prudential from federal be- distinguishable can be “modified or abro- prudential cause constraints .. . .” Id.14 Before gated by Congress Lujan, supra, the difference Supreme United States Court described prudential federal constitutional and federal between Club, at 732: supra on Sierra constraints party rely any specific does not on statute Where judicial authorizing process, question invocation of the standing depends upon party alleged whether the has controversy,” “personal stake in the outcome of the such a Carr, 691; 7 L Ed [82 Baker v. 369 US S Ct 2d 663 (1962)], sought dispute as to ensure that “the to be adversary adjudicated presented in an context will be historically capable judicial in a form viewed as resolu- Cohen, Where, however, tion.” Flast v 392 US 101. Congress public perform has authorized officials to certain law, according provided by functions and has statute for certain circum- review of those actions under stances, begin inquiry as to must with a question autho- determination whether statute plaintiff. rizes at the behest of the review *42 applying There has never been a federal case article controversy standing Ill’s case or based constraints to by Kennedy noted for writing state courts. As Justice claiming Citizens of the same State Lands under —between States, State, and or the Grants different between Citizens States, thereof, foreign Subjects. and Citizens or 14Addressing legislative standing prudential vis-a-vis federal Bennett, constraints, majority standing writing Justice Scalia for the supra grant standing “any person” held that the to under the Act, Endangered Species 1540(g), 16 USC be at “face must taken value” subject legislation because “the overall matter of this is the environment (a persons matter in which it is common to think that all have an interest) purpose provision encourage and that the obvious is to by ‘private attorneys general’... enforcement so-called Nat’l Wildlife v Cleveland Cliffs Concurring Opinion by J. Weaver, ARCO, Kadish, 605, 617; the Court in AS Inc v 490 US (1989): 2037; L 109 S Ct 104 Ed 2d 696 recognized Wehave often that the constraints of Article courts, apply III accordingly do not to state the state courts are not bound limitations a case or controversy justiciability or other federal rules of .... Nevertheless, the majority incorrectly because and at length insists that article Ill’s case or controversy constraints do apply Michigan, it is necessary review those constraints. purposes case,
For the of this the relevant articula- tion of the federal article standing Ill-based test found in Lujan 555; Wildlife, 504 US Defenders of (1992).15 S Ct L Ed 2d 351 In Lujan, supra at 560, the lead opinion of the United Supreme States Court concluded that the “irreducible constitutional minimum” within the meaning article Ill’s “case or controversy” limitation is as follows:
First, plaintiff “injury must have suffered an in fact” (a) legally —an protected invasion of a interest which is (b) particularized, imminent, concrete and “actual or ” ‘conjectural’ ‘hypothetical.’ Second, not there must be injury a causal connection between the and the conduct complained injury “fairly of—the has to be trace[able] .. . challenged defendant, to the action of the and not...
result independent [of] the party action of some third Third, “likely,” before the court.” opposed it must be merely “speculative,” injury that the will be “redressed a favorable [Citations decision.” omitted.] In Lujan, six United States Supreme justices Court agreed plaintiffs that the had failed to demonstrate a concrete injury resulting from a lack of opportunity to because, This infra, articulation is relevant as will be discussed “supplemented” Michigan’s Lujan’s Lee test with article Ill-based test.
662 608 471 MICH Opinion by Concurring Weaver, J. funded federally of certain regarding impact consult ability on its members’ observe overseas activities trips on future abroad.16 endangered species unspecified qualified support with the Lujan opinion, The lead concurrence, consistently noted that “[w]e raising only generally that a a available plaintiff held harm to government claiming only about grievance — in every proper application and citizen’s interest his laws, seeking and and relief that no of the Constitution him than it does the directly tangibly more benefits large at not state an article III case or public —does controversy.” Id. at 573-574.17 Lee, by
Until the decision it was well-understood controversy” this Court that article Ill’s “case or limi- Lee, Until inapplicable Michigan tation was courts.18 16 Lujan opinion by joined in lead was authored Justice Scalia and by Rehnquist Chief Justice and Thomas. Justice whole Justices White by Souter, Kennedy, joined separately, agreeing concurred that the Justice respondents injury. Kennedy failed to demonstrate concrete Justice his join part opinion concurrence did not of the that articulated the three- test, element “irreducible” but rather based his concurrence on the respondents’ injury failure to demonstrate concrete that would he precedents.” Lujan, supra Lujan sufficient “under our at 580. The however, applied, subsequent has test been decisions of the See, Bennett, Supreme e.g., supra, United States Court. and Friends Earth, (TOC), Inc, 167; Inc v Laidlaw Environmental Services 528 US (2000). L 2d S Ct 145 Ed Over the dissent of Justices Scalia and Thomas, Supreme tempered the United Court in Laidlaw States its application Lujan injury requirement holding concrete that a plaintiffs “reasonable concerns” that a defendant’s conduct would affect recreational, aesthetic, Though their and economic interest was sufficient. Lee, preceded by Laidlaw this Court’s decision in it was not mentioned However, majorily. Lee it should he noted that the now cites with approval the Laidlaw dissent of Justice Scalia. Ante at 631 n 20. Kennedy’s opinion portion Justice concurrence with this of the lead “Congress injuries qualified was his has the to define view give and articulate chains of causation that will rise to a case or controversy Lujan, supra where none existed before.” at 580. 18ASARCO, Inc, supra Speaker, supra at and House at 559 n 20. Lee, supra concurring); Fighters, See also J. Fire (Weaver, Detroit supra concurring). at 643 J. (Riley, v Cleveland Cliffs Concurring Opinion Weaver, J. *44 standing this Court characterized no decision of being as a Michigan question. courts constitutional Nonetheless, article majority adopted Lujan’s the Lee test, concluding vaguely Lujan’s Ill-based that test was Lee, standing.” “fundamental at 740. The Lee supra im- majority neglect standing warned that “would whereby govern- the constitutional architecture peril powers mental are divided between the three branches Lee, government.” supra of at 735. the fact that con-
Obscuring
Michigan’s Constitution
III, §2,
corollary
majority
tains no
to article
the Lee
suggested
Michigan’s
developed
doctrine
standing
way
on a
track
of “additional constitutional
parallel
by
added).
Lee,
underpinning.”
supra
(emphasis
737
The “additional
refer-
underpinning”
constitutional
by
majority
enced
the Lee
was Const
art
1963,
6,
1,§
judicial
courts,19
which
vests
state
art
the powers
Const
which divides
of
1963,
3,
2,§
government
However,
into three branches.20
the cases
addressing
provisions
majority
these
cited
the Lee
cases;
standing
were not
rather each involved a distinct
question regarding
scope
judicial
of
In
power.21
19
1963,
6,
provides:
judicial power
§
art
1
Const
“The
of the state is
exclusively
justice
vested
one court of
which shall he divided into one
court,
supreme
appeals,
general jurisdiction
trial
one court
one
court of
court,
probate court,
as the circuit
known
one
courts of limited
jurisdiction
legislature may
that the
establish
a two-thirds vote of the
serving in
members elected to and
each house.”
20
provides:
powers
government
§
Const
art
2
“The
are
branches;
judicial.
legislative,
person
divided into three
executive and
No
exercising powers
powers properly belonging
of one branch shall exercise
expressly provided
except
to another branch
in this constitution.”
majority
Governor,
(1874),
The Lee
cited Sutherland v
other
“judi-
unrelated issues of
addressing
case law
addressing article Ill’s
cial
federal case law
power” with
on
controversy”
standing.22
constraints
“case
majority’s analysis,
adoption
The Lee
and its
test,
standing
ground
article
laid the
Lujan’s
Ill-based
Legislature’s authority
to confer
question
work to
on
who would not survive Lee’s test.
standing
plaintiffs
I
that the
test
adoption
Lujan
continue to believe
Lee,
unnecessary.
the Lee
was
standing by
Further,
concurring).
at 744
J.
supra
(Weaver,
majority’s application
of Lee’s
test to a case
based,
involving
constitutionally
legislated
expressly
grant
adoption
demonstrates
*45
only
it
Lujan
unnecessary,
wrong Michigan.
is
is
for
Michigan’s
addressing distinguishable
case law
issues
involving
judicial
the
of
before Lee
scope
power
already
protected
powers among Michigan’s
the balance of
government.23
three branches of
It is
that a
simply
judge-made standing
not true
test
on a federal
provision
based
constitutional
that has no
corollary
would,
in Michigan
promised by
the Lee
majority,
preserve Michigan’s
better
“constitutional ar-
Lee,
chitecture.”
supra
Certainly,
majority’s
735.
the
distracting diversion into
of
contemplations
federal law
delegate judicial power
acting
judges
cannot
to circuit
in chambers as
Lines,
court;
Inc,
opposed
Freight
to in
Johnson Kramer Bros
(1959),
Legislature may delegate
IV PRESERVING
why
Among
Lee’sarticle Ill-based stand-
the reasons
ing
anyjudge-created standing test
not be
test or
should
important
applied
plaintiffs,
that to
the most
to MEPA
readily
unambiguous,
clear,
un-
do
defeats the
so
§
purpose
art
derstandable
4,
§
Through
people
4, of Michi-
art
Constitution.24
Legislature
provide
protec-
gan
directed the
“to
of the
air,
pollution, impairment
tion of the
and other natural resources
water
Art
state from
and destruction.”
people’s
§
provides
4, that this mandate serves
“paramount
express
concern in the interest
spe-
safety
general
people”
health,
welfare of
cifically
respect to “the “conservation and devel-
with
Employ-
opment of the natural resources of the state.”
§
ing
precise
4, 52, the
of art
words
§ MEPA in fulfillment of art
52’s mandate.
enacted
*46
that the
enactment, this Court has held
Since MEPA’s
standing
Michigan Legislature
under MEPA
could confer
alleges
“any person”
conduct
who
that a defendant’s
to
State,
Secretary
See, e.g., Farm Bureau v
Mich
(1967)
(addressing principles of constitutional
25Mepa requires plaintiffs to show “that the conduct of defendant has polluted, impaired, destroyed likely pollute, impair, destroy or or is or air, water, 324.1703(1). or other natural resources ... MCL may plaintiffs defendant submitting rehut a case evidence to the contrary by way showing of an affirmative defense “that there is no prudent feasible and alternative to defendant’s conduct and that his or promotion her conduct public health, is consistent safety, with of the light paramount and welfare in protection state’s concern for the pollution, impairment, of its natural resources from or destruction.” Id. present distinguishable This case is from Lee because the statute at legislated express issue in Lee did not involve a cause action coupled unambiguous grant standing. an with Lee addressed the plaintiffs standing compel county levy boards of commissioners to establishing tax a veteran’s relief fund in accordance with the soldier’s act, seq. relief MCL 35.21 et *47 667 v Cleveland Cliffs Wildlife Nat’l Opinion by Concurring Weaver, J. the constitution by made ever so clear duty to take it be Sutherland, at 326. supra or the laws.” MEPA, given private has “the Legislature the Through environmen- the initiative for share of citizen sizable at 454. Yet it is supra Eyde, tal law enforcement.” that MEPA’scitizen-suit majority the strongly implied by judiciary to the unconstitutionally transfers provision faith- that the laws are to ensure power the executive and argument unsupportable This fully executed. expand does not provision MEPA’scitizen-suit incorrect. to the power it the judiciary; grants the power MEPAviolations. pursue of this state to people way any in no from role in these cases differs court’s it: the court hears controversy other that comes before law, and renders a case, interprets applicable decision.27 “any
Moreover, permit decision to Legislature’s with the under MEPAdoes not interfere person” to sue branch, executive it enforcement of the law every citizen an to ensure simply provides opportunity designed that are to environmen- prevent that the laws sense, citizen-suit tal harm are enforced. In this MEPA’s “ that, political [a]ll with the fact provision is consistent people. is inherent in the Government is insti- power benefit, security protection.” their and equal tuted for 1, § Art 1. 27 8, 9, 32, majority 3, § Similarly, § art is mistaken that art art 3, grants power 11, grant “judicial power.” § § Art 8 to 5 Ante at 624-625. advisory opinion request Governor to an on the any taxpayer ability constitutionality legislation. grants § Art 32 Amendment, though pursue has violations of the Headlee recently grant standing by applying broad eviscerated that broad judicata preclude taxpayer
judicially principles claims. created of res (2004) (Weaver, Michigan, Mich 386 J. See Adair v 680 NW2d grants concurring Finally, § dissenting part part). art any pursue injunctive or mandamus relief for citizen to provisions. violations of the Mich [July- Concurring Opinion J. Weaver, the majority’s application of Lee’s
Further, ignores the fact govern- test the three branches of “operate ment cannot in all respects independently others, and that are what called the checks and balances of government constitute each a restraint Sutherland, supra at 325. Justice upon the rest.” Cooley elaborated: *48 Legislature
The prescribes rules actions for the courts, many particulars may in and increase or diminish jurisdiction; also, many cases, may their it prescribe in action, for impose upon, rules executive and duties or take powers governor; governor may from the while in turn the legislative acts, may veto and the courts declare them void they constitution, where conflict notwithstanding, with the having passed by after Legislature, they been the governor’s approval. received the But in each of these cases department controls, the action of modifies, the which or in any another, manner strictly influences that of is had sphere, within gives its own and for that reason no occasion conflict, controversy jealousy. or The in prescribing courts, acting rules for the is proper within its province making laws, courts, in declining while the in to law, enforce an acting unconstitutional are in like manner proper within province, they only their apply- because are ing that they which is law to the controversies in which are upon givejudgment. mainly called by It is means of these checks and balances that the depart- officers of the several kept jurisdiction, ments are within they their and if are disregarded any case, power usurped abused, is or remedy by impeachment, the by depart- and not another government ment of the attempting wrong to correct the by asserting superior authority by over that which [Id.) equal. constitution is legislative
The power power includes to create legal rights. And, new where the Legislature chooses, it may exercise its discretion to create and define new Cliffs v Cleveland by Opinion Concurring Weaver, J. counterpart, Unlike its federal action.28 causes of not limited judiciary is of the jurisdiction in article controversy expressed limitations or case nor States Constitution III, § 2 of the United of those ever-evolving interpretation court’s federal limitations. constitutionality doubt,
Without MEPA’s future “teed for a up” remains provision citizen-suit standing test ruling that Lee’s and direct open to confer stand- authority the Legislature’s supercedes standing test application of Lee’s majority’s ing. constitutionally conferred any legislatively person’s enlarges improperly under MEPA based Legislature’s power, expense at the court’s architec- very “constitutional ironically violating in Lee.29 majority purported protect ture” provides: § Art force, and the statute laws now The common law they constitution, until repugnant shall remain force to this limitations, changed, expire by amended their own or are repealed. *49 provi- majority recognized Interestingly, that this constitutional the action, Legislature power limit or grants the to create a cause of sion the action, action, modify of or take the less cause of eliminate a cause the hunting damages particular of step for a cause of the recoverable drastic (2004) Mirac, Inc, Phillips 174 685 NW2d action. J.). 3, § constitutional basis for (opinion Art 7 is an additional of Taylor, standing authority concluding has has the to define who the concluding By to pursue action that it creates and defines. to a cause of case, separation powers contrary majority of violates the in this the the by allowing judge-made Michigan in the Constitution defined policy usurp legislative decisions. tests to powers, governmental it is worth regard of to the balance With interpret of noting the current would that because constitution, III, it § art 2 of the federal court as limited Michigan courts impose on access to restrictions has freed itself Mich Opinion by Concurring Weaver, J. 324.1701(1) V PLAINTIFFS HAVE STANDING UNDER MCL plaintiffs The circuit court concluded that lack stand- under To ing light to sue MEPA of Lee. reach this conclusion, that court reviewed members of affidavits organizations made plaintiff following com- ments from bench:
They this, they were concerned about were concerned that, they might about were concerned that there not be as many birds around Goose Lake as there to be. And used I’m going go through take the time the affidavits one by one, anybody but I think that them who reads will see phrases how often words or “I am concerned” any without stated in those basis affidavits for the reason being concerned. I am concerned that there will be an impact, I am there concerned that has been diminish- fishery Lake, ment of the in Goose and I’m concerned that mining fishery. activities will further diminish enough. That’s not appealed
Plaintiffs and the Court Appeals re- versed. The Court of Appeals plain reviewed lan- guage and, citing correctly of MEPA Ray, held that plaintiffs have standing. Appeals Court of stated it “declined defendants’ invitation to read an requirement additional compliance with non- i.e., statutory standing prerequisites,” judge-made Unpublished tests. opinion, memorandum is- (Docket 232706). sued June In footnote, No. the Court of Appeals aptly commented it found no indication Lee that this Court intended to overrule and noted that Ray the statute at Lee issue in could be distinguished because it did not a provision “contain beyond Legislature. Moreover, govern- those no branch other majority’s ment improperly can check or balance the exercise its power. assumed *50 v Cleveland Cliffs Concurring Opinion Weaver, J. an action any person maintain authorizing expressly act.” at 2. Slip op or for violations omissions have plaintiffs the of that Appeals I with Court agree people’s with the standing under MEPA. Consistent 4, 52,§ the has determined Legislature in art mandate impairment, pollution, that actual or threatened any injury is an natural resources destruction MCL in circuit court. person may enjoin seek to 324.1701(1). that the case, alleged In plaintiffs re harm natural proposed mining defendant’s will under MEPA to allow This is sufficient sources. door, plaintiffs day plaintiffs their in court. Once facie prima required next establish their case as must 324.1703(1).30 by MCL
VI. DECODING THE MAJORITY OPINION Legislature’s “any person” grant standing 324.1701(1) than unquestionably in MCL broader is its standing majority test. The retains judge-made Lee’s test in the standing grounded firm belief that Lee’s separation powers. By repeatedly as- constitutional may not confer serting Lee, broadly impliedly than has more accuse very question they decided constitutional that, reaching. It improperly appears this dissent mistaken majority’s perspective, from MEPA’s provision is unconstitutional because citizen-suit “any per- to confer on Legislature’s attempt separations powers. son” under MEPA violates the forgotten. must not Plaintiffs mepa The realities of citizen-suit be case, declaratory prima only can and establish their facie receive must (not may money damages), required equitable to bear their relief be years, more than 30 costs. MCL 324.1703 and MCL 324.1701. After own spawned unmanageable an so feared MEPA has not stream of citizen-suits anticipated majority. Ante at 649-650. Mich 608 Concurring Opinion by J. Weaver,
Moreover, Lee, who, it is in majority created the constitutional that must dilemma be resolved in this discussed, case. previously unnecessarily As Lee im- federal ported the constitution’s article III case or controversy standing Michigan constraints on into law. Lee, It should also be parties noted that had not raised or briefed the of applicability Lujan article III initiative, federal constitution. On its own Lee raised majority Lujan’s test and transformed standing Michigan into question. constitutional fundamentally I disagree with the majority’s percep- judicial tion of discipline duty. and It not necessarily is judicial discipline evidence dodge ultimate case, issue in a be the issue of constitutional dimension or not. is it disciplined import Nor into law federal constitutional constraints people that the —the ratifiers of the Michigan Constitution —have not Moreover, adopted. where the Court specifically re- (as quests that an issue be briefed did in this Court this case) and the issue squarely presented, dodging the question destabilizes the law. It is particularly inappro- priate the parties where must bear the cost further unnecessary litigation or where the decision creates confusion for the bench case, bar. In this it is a exercise of proper judicial duty and answer the question constitutional presented by Court regard- ing judge-made whether Lee’s supercedes test the Legislature’s authority to confer standing.
Further, while purporting to act with re- straint by leaving constitutionality of MCL 324.1701(1) doubt, majority to chart attempts course for the resolution issues not even before the Court by suggesting that plaintiffs may not simply rely on the affidavits to that prove standing exists. Ante at majority 630-631. The confuses the issue of standing Cliffs Cleveland Concurring Opinion J. Weaver, Ante jurisdiction. subject-matter a court’s with that suggests erroneously majority The 630-631. deci- unanimous this Court’s can reverse circuit court However, this Id. standing. have plaintiffs sion standing controls that plaintiffs decision Court’s that issue. affidavits plaintiffs’ then hints majority
The motion for to survive a either insufficient may be burden plaintiffs or to meet the summary disposition an irrelevant this, cites For proof. dissenting Court Supreme States nonbinding United plain involving federal law. federal case in a opinion decisions Court’s own MEPA MEPA and this language court on for the circuit guide appropriate are a far more *52 remand. instructs:
MEPA showing prima that plaintiff a facie has made When impaired, polluted, or the defendant has the conduct of air, destroy likely pollute, impair, or destroyed or is water, public or the trust natural resources or other resources, may prima facie the defendant rebut the these contrary. showing by of evidence to the submission defense, show, may by way of an affirmative defendant also prudent alternative to defen- there is no feasible and that or her conduct is consistent conduct and that his dant’s health, safety, and promotion public welfare with protection paramount concern for the light of the state’s pollution, impairment, natural resources from of its defense, the affirmative Except as to the destruction. weight proof and of the evidence principles of burden of courts actions in the circuit generally applicable in civil part. [MCL brought under this apply to actions 324.1703(1).] held, previously Court
As this
plaintiffs prima facie
necessary showing
to establish
degradation
actual environmental
case is “not restricted to
VII. CONCLUSION
The majority decision in this case illustrates how
judicial activism can
disguised
be
judicial
restraint.31
Purporting to be concerned about
separation
powers,
majority,
actuality,
uses its
to undermine the Legislature’s proper
exercise
its
authority to create a cause of action and define who can
pursue that action in court. The clear implication of the
majority’s constitutional
rhetoric combined with its
application of Lee’s standing test to
plaintiffs
these
that the majority
yield
will not
to any grant
by the Legislature that
is broader than the majority’s
judge-made
own
test. The majority’s decision destabi-
lizes the law and
years
overrules 30
of precedent. See
supra
652 n 3. The majority decision forces future
plaintiffs
to establish that an actual or threatened
MEPA
*53
environmental harm has actually injured or will immi-
Indeed,
majority
the
has unleashed an assault on
mepa
this term. In
case,
majority applies
the
standing
Lee’s restrictive
mepa
test to
plaintiffs and
permissive
leaves the future
legislatively
of the more
standing
By
conferred
in doubt.
its
Dep’t
decision in Preserve the Dunes v
Quality,
508;
(2004),
Environmental
quired to to laws § citizen-suit 4, 52. MEPA and its Art environment. implements provision properly direc- the constitution’s supra Hwy Comm, more restric- at 184.Lee’s State tive. imposed standing judge-made on not be test should tive plaintiffs by “any Rather, in this case. clearly expressed by person” standard suggest applied. through To or hold MEPA should be by allowing separation powers otherwise violates grant Legislature’s judiciary supercede “any person” under MEPA. only majority’s I, therefore, in the result concur standing. plaintiffs plaintiffs I would hold have 324.1701(1) under MCL protection I, therefore, dissent from act. environmental majority’s reasoning. all the result). agree (concurring I with the J. Cavanagh, by majority but reached Justice
result WEAVER, my change position separately acknowledge write Bd decided Lee v Macomb Co this Court since (2001). 726; In that Comm’rs, Mich 629 NW2d900 agreed signed dissent, which case, I Justice KELLY’s Lujan majority’s adoption with the Defenders of Ed 2d 351 2130; 119 L S Ct Wildlife, 504 US *54 Mich Concurring Opinion by Kelly, J. (1992), for standing test in this state. I now that position disavow for the expressed reasons in Lee, Justice WEAVER’S in opinion as well as her concur- in rence this case. should Lujan not be used to deter- mine standing this state.
Thus, I concur with the result reached the major- ity and the reasoning espoused by Justice WEAVER. J. (concurring only). agree result I with the
Kelly, opinion of Justice WEAVER and with the result reached by the majority.
The Court concludes that plaintiffs have standing
they
and that
satisfy
test that was adopted
in Lee v
Comm’rs,
Macomb Co Bd
464 Mich
747;
(2001)
However, majority *55 the in MEPA would violate standing provision that a par clause absent separation powers constitutional determination on stand The Court’s injury. ticularized majority’s separation discourse on ing renders simply discourse is unnecessary. doctrine This powers Moreover, the Court’s usual alle departs it from dicta. do not reach a constitu to the that we giance principle grounds narrower will suffice tional when question & Allied Bricklayers an J & J Constr Co v resolve issue. (2003). 1, 468 722; Mich 664 728 Local NW2d Craftsmen, whether, absent necessary If a were about decision showing particularized injury, of a MEPA’s doctrine, I powers provision separation violates Legislature has the hold that it does not. would to a who does not authority grant standing party standing requirements Lujan. satisfy judge-made are wrongly requirements held that the federal Lee satisfy. prerequisites every plaintiff that must
STANDARD OF REVIEW
de novo.
summary disposition
review motions for
We
Co,
456, 461;
464
628 NW2d
Hazle v Ford Motor
Mich
(2001).
plaintiffs
ques-
515
Whether
Cardinal
tion of
is also reviewed de novo.
law
Athletic
School v
School
Mooney High
Michigan High
(1991).
80;
21
Ass’n,
75,
Mich
467 NW2d
When
437
summary disposi-
on a motion for
considering
ruling
2.116(C)(8),
only
plead-
look
tion under MCR
we
Radtke v
well-pleaded
true all
facts.
ings
accept
471 Mich
Concurring
Opinion by
J.
Kelly,
Everett,
368,
373;
(1993),
Mich
citing
NW2d 155
Co,
Abel v Eli
&Lilly
PROCEEDINGS BELOW
The Marquette Circuit Court applied Lee and dis-
missed this lawsuit
finding
plaintiffs failed to
they
demonstrate that
had standing.2 The Court of
Appeals disagreed and
claim,
reinstated the
holding
that plaintiffs have standing under MEPA. Unpublished
opinion
memorandum
of the Court of Appeals, issued
(Docket
232706).
June
No.
granted
We
leave to
appeal specifically limited to the issue “whether
can
statute confer standing on a party
who does not satisfy
test for standing” that
(2003).
was adopted in Lee.
THROUGH THE POWER OF THE JUDICIARY The Michigan environmental protection act explicitly *56 recognizes right of “any person” to bring suit in Michigan courts to protect the public trust in land, our water, and other natural resources. The Legislature accomplished this writing broad standing act, into the supplementing state’s power enforcement with what has been “private termed [attorneys [gjeneral.” Associ- (CA ated Industries Ickes, NY State v 694, 134 F2d 704 1943). As the trust, beneficiaries each of us is entitled to bring suit to conserve our environment. 2 Defendants’ motion to dismiss plaintiffs’ petition interlocutory 2.116(C)(8). brought review was Although under MCR the circuit court found that had failed to establish a plaintiffs facie the order prima case, standing. dismissed the case for lack of solely 679 v Cleveland Cliffs Concurring Opinion J. Kelly, obligation. Hwy act fulfills a state constitutional The Vanderkloot, Mich 220 NW2d v Comm (1974). 4, § 1963, art 52 which It from Const springs provides: development of the natural re- and
The conservation hereby paramount declared to be of of the state are sources health, safety and public in the interest of the concern provide people. legislature general of the shall welfare air, natural protection of the water other for the pollution, impairment and de- of the state from resources struction. act, language this in the
Intentionally mirroring
maintain an ac-
“any person may
Legislature wrote:
declaratory and
relief.
. . for the
equitable
tion . . . for
air, water, and other natural
re-
protection
324.1701(1).
of the state. MCL
sources”
wide the courthouse doors
open
Its decision
merely returns to
through
provision
the act’s
to ensure that environ-
people
some of
1, § 1. The
are executed. Const
art
mental
laws
acknowledge
respect
provision
courts should
intent. Dressel v
expression
legislative
as a clear
(2003).
Ameribank,
557, 562;
468 Mich
We are mindful and are entitled that their rights constitutional not be hobbled 4, 52,§ art regard may courts. With the people reasonably depend that the courts will not thwart Legislature’s efforts to fulfill protect its mandate to our public’s Michigan’s trust in natural resources. We must not import requirements for access to the courts are not founded on our majority Constitution. Yet the has created requirement by one such adopting Lujan “case” and “controversy” rule. Lee,
Before other provisions in our state Constitution brought allowed suits to be by parties state courts satisfy who do not the Lujan requirements. For ex- ample, 11, § art 5 “any allows citizen” to seek an injunction to enforce provisions. its The Headlee states, Amendment “Any taxpayer of the state shall have bring suit in the Michigan Court of Appeals to enforce sections 25 through 31”3 of article 9. added). 1963, 9, § Const art 32 (emphasis This Court may advisory issue A opinions.4 particularized injury need not be demonstrated in order to sustain suits under these See In provisions. re Request Advisory on Opinion PA Constitutionality 1997 (1977).5 83; 260 NW2d
And citizens’ suits
long
been
accepted
our
jurisprudence. They, along with other
brought
actions
by a person who lacks an
injury,
individualized
were
known to the
framers
the federal constitution. They
existed in the legal practice in the United States and
England
when
federal constitution was written.
spend.
These sections address the state’s
to tax and
3, §
Const
art
8.
provisions
The inference that
I draw from these
is that
the state’s
judicial power
opposite
is broad. The
draws the
inference. See
ante at 625 n 13.
Cliffs
v Cleveland
Concurring Opinion
Kelly, J.
*58
allowed, also,
bring
suits
writs of
Individuals were
Sunstein,
and mandamus.
What’s stand-
quo warranto
suits,
and Article
Lujan?
“Injuries,”
citizens
ing after
Of
(1992).
III,
163,
L R
Individuals were
170
allowed, also,
in the
bring
mandamus actions
states.
at 171. See also Union
Railroad v
See Sunstein
Pacific
(1875).
Hall,
In England, private suits could under the informers’ action general, brought be the relator action. action, In the informers’ cash bounties were awarded to successfully strangers prosecuted illegal conduct. In who actions, brought formally relator suits would be in the General, Attorney name of the but at the instance of a private person, stranger. [Sunstein 172.] often a Merely because the framers of our state Constitution government govern- created a like the federal tripartite ment, they it does not follow that intended to eliminate actions private attorneys general.
THE SEPARATION OF POWERS ARGUMENT The separation powers simply: state doctrine reads powers government
The
are divided into three
legislative,
judicial.
person
branches:
executive and
No
exercising powers
powers
of one branch shall exercise
properly belonging
except
expressly
to another branch
constitution.[6]
provided
1963,
3,
[Const
§ 2.]
this
art
meaning
may
The most obvious
of this sentence is that one individual
simultaneously
government.
hold office in more than one branch of
See
Lutz, Popular
Popular
Whig
Theory
Consent and
Control:
Political
in the
Constitutions,
(Baton
Early
Press, 1980),
Rouge:
p
State
La
State U
96.
prohibition.
federal
constitution
does not
contain
See
States,
O’Donaghue
516;
740;
v United
289 US
53 S Ct
It has been understood that this provision is not to be
in an
applied
overly rigid fashion. Some overlap is
acknowledged
functioning
to exist
of the various
branches. The state Constitution
it.
permits
For in-
stance, a
rights
civil
commission within the executive
branch
lawmaking
is vested with some
power. Const
1963,
4,
§
§
art
provides
29. Article
the Governor
with veto
over legislation,
§
and art
7 pro-
vides the
impeachment authority.
with
In-
deed, any grant
legislative powers
agen-
executive
cies would
per
be unconstitutional
se if
overlap
some
between the branches of government were not permis-
Jr,
sible. See JW
& Co v
Hampton,
States,
United
(1928).
348;
US
48 S Ct
684
The federal doc by Lee are adopted Lujan predicated part trines from judges directly also on the fact that federal are not Richardson, people. accountable to the United States v (1974) 166, 180; 2940; 418 US 94 41 L Ed 2d S Ct 678 (Powell, J., concurring). judges appointed by Federal are 11 may only by impeachm the President be removed By contrast, ent.12 our state are elected judges by the people.13 Supreme recognized United States Court has not limited access state courts is federal ASARCO, Kadish, 605,
constitution. Inc v 490 US (1989). 616-617; L 109 S Ct Ed 2d 696 considered, Everything it is not surprising qualifications state courts are broader than federal courts. Const, III, § US art 2. See 10Ante at 627. Const, II, § US art 2. Const, III, II, § § art 1 and art 4. US 2, 8, 12, §§ art 16. Const *61 685 v Cleveland Cliffs Concurring by Opinion J. Kelly, judicial determined that their
Other states have by the federal model. For power is not constrained example, Indiana has held: III of the United States Constitution
While Article jurisdiction of federal courts to actual cases and limits controversies, the Indiana Constitution does contain any Thus, although restraint. moot cases are usu- similar dismissed, ally long recognized ... an Indiana courts have exception general rule the case to the when involves Lawrance, questions “great public re [In interest.” 579 1991).] (Ind, NE2d 37
Similarly,
recognized
Minnesota has
federal
standing
historically
concerns
have been related to
whether a
in an
dispute brought
adjudication is
adversary context and
capable
resolution.
However, when
conferred
a
standing
by
has been
state
statute,
imposing
“there is no constitutional basis for
stringent
more
standing requirement
[than that] which
is set
governing statute.” Minnesota Pub Interest
Research
v Minnesota
Labor &
Group
Dep’t
Industry,
65, 73;
(1976),
311 Minn
249
'n
citing
NW2d 437
Ass of
Data
v
Processing
Organizations,
Service
Inc
Camp,
(1970).
150, 151;
827; L
US
90 S Ct
25 Ed 2d 184
also
See
Dep’t
Kuhnlein,
(Fla, 1994),
2d
Revenue
So
Chester Co Housing
Pennsylvania
Auth v
State Civil
Comm,
621;
(1999),
Service
556 Pa
Of
not to say
this is
before
they
was without
requirements. Simply,
were
more encompassing
requirements.
than the federal
To
courts,
had to
standing Michigan
person
show
the existence of a
over a
Daniels v
dispute
legal right.
People, to the level of a necessary showing did not need to rise “controversy.”14 “case” or requirements which also Our state has relied on other broadly applied. is not too serve to ensure that that a ripeness requirement ensures example, For *62 actually and that it has not been claim has arisen Solomon, 151 Mich 115 negated. Obenauer NW (1908). that the case not be moot requirement The ques- that it does not a abstract present purely ensures are East only disputes litigated. tion and that actual Bd, School Dist v Kent Co Tax Allocation Rapids Grand (1982). 381, 390; 687 of this p 330 NW2d See opinion. standing provisions
I that our state’s before believe sufficiently judicial power Lee ensured that was prop- erly allowing vigorously pursued constrained while The decision in blocked proceed. wrongly suits to Lee to our courts. access state’s assertion, Hence, contrary majority’s to the Lee’s are not standing requirements prevent essential to judicial legislative from overpowering branch and the branch executive branch.
THE SEPARATION OF AND MEPA POWERS DOCTRINE Turning interplay to the between the envi- protection separation powers ronmental act and the clause, I cannot conclude that the act offends the clause. do
Separation
powers principles ensure
courts
beyond
not move
the area of
and that
expertise
When the
characterizes
“cases” and "controversies”
Lujan
synonymous
ante at
“disputes,”
with
it is mistaken. See
Notably,
majority produces
authority
proposition.
560.
no
for this
Id.
Clearly,
“controversy”
specific meanings.
“case”
v Cleveland
Cliffs
Concurring Opinion
Kelly, J.
political questions
are not answered
a branch of
government
people.
unaccountable
to the
House
Governor,
560, 574;
Mich
Speaker v
MEPA is an expression public protect- concern for ing the state’s natural passed resources that was into through law the normal political process. It reflects the determination the resources of the executive supplemented branch should be with those of the people. majority today threatens to diminish the victory signified by passage. its
MEPA does judiciary legis- not enable the to exercise lative at the instigation plain- a disinterested tiff. The structure of MEPA ensures that the are plaintiffs not mere The act interlopers. requires plaintiff *63 prima make a facie showing damage. environmental Hence, MCL 324.1703. there always alleged will be actual or imminent harm that will ensure that cases like this one ripe will be and that they will not be moot. See 686 of p opinion. presents actual,
This case one such controversy. live The mine expansion defendants’ is imminent. Plain- tiffs’ membership people includes who and recreate live in the area of the mine and claim adversely to be affected its expansion.
Environmental
and other collective concerns often
legislative power
legal rights
An inherent
is to create
enforceable
through
judiciary
legal
Lujan
and define
chains
causation. See
578,
(Kennedy, J., concurring).
use”
Commerce, 327 US
Dep’t
Co v United States
Electric
(1997). These interests
33, 38;
directly enforce
would offend
MEPA
ability
if it
the executive branch’s
interfered with
v Administrator
its functions. Nixon
Gen
accomplish
Services,
425, 443;
2777;
MEPA includes a mechanism to ensure judiciary are It allows the respected. branch decisions agen- act to state protection refer environmental cases 324.1704(2). explicitly MEPA cies for resolution. MCL *64 v Cleveland Cliffs Concurring Opinion J. Kelly, “supplementary existing regula- to administrative and tory procedures provided by as law.” MCL 324.1706. in it Nothing encourages judiciary or authorizes the itself exercise power executive hinders discretion of the executive MEPA poses danger branch. no “aggrandizement or encroachment” power trigger separation would of powers concerns. Mistretta States, v 382; 647; United 488 US 102 L 109 S Ct (1989). Ed 2d 714
THE NEW JUDGE-MADE STANDING LIMITATION
Obviously, this Court is entitled to constrain its own
power
and limit
as it
has done
this case. But
so,
in doing
it
creates
self-inflicted wound. See Warth
Seldin,
v
490, 500;
US
95 S Ct
The Court is ill-advised curb its authority under the guise of respect for another branch government. Its today decision is an unwarranted contraction of the right people to the judicial use and the legislative protect their interest in preserving the envi- not, asserts, ronment. It is the majority prudent check on an attempted expansion legislative power. Ante at 616-618.
Mepa does not violate constitutional separation of powers principles despite the fact it lacks a par- ticularized injury requirement. principles These re- quire that the judiciary respect the Legislature’s deci- sion and fulfill its role to adjudicate disputes aas co-equal branch of the government. state’s Mich 608 *65 by Concurring Opinion Kelly, J. that it a of horribles16 majority parade
The
advances
if
were
provision
emerge
fears would
MEPA’s
by
Lujan
require-
the
supplemented
closely, the
tend to
examined
horribles
ments.17 When
prima
must establish
plaintiff
shrink. Under
MEPA,
to
a claim.
support
harm sufficient
facie environmental
324.1703(1)
Dev,
and Nemeth v Abonmarche
See MCL
(1998); MCR
Inc,
16;
Mich
CONCLUSION agree and with opinion with Justice WEAVER I majority. the result reached Plaintiffs have standing. authority give The to their in the people legal right protect interest through private attorneys general environment should not be abridged.
I Michigan Legislature would find that did not by granting standing violate the state Constitution party satisfy judicially under to a who does not MEPA here, test, applicable crafted Lee test. The test MEPA it carefully Legislature. was devised Because majority’s proclivity for For a similar demonstration of this dooms day prophesy, Dep’t see its conclusion Preserve Dunes v (2004). Quality, Mich I note that Environmental 684 NW2d there, enjoin respected people I would have the will of the critical dune mining by ineligible See entities. The should have done likewise. ante at 638 n 25. 17 See ante at 649-650. v Cleveland Cliffs Concurring Opinion by Kelly, J. I gave standing “any person,” that any person believe should be able to avail himself of that law. Court of Appeals analysis decision and should be affirmed and the case remanded to the circuit court for trial.
CAVANAGH,J., KELLY, concurred with J.