Extreme Supremes Nullify Flagship Environmental Law

Thirty-seven years ago, concern about the environment became a mainstream U.S. value. Millions of Americans took t the streets to observe the first Earth Day. President Richard M. Nixon created The Environmental Protection Agency. And a burst of citizen activism persuaded the Michigan Legislature to enact a law that became a model for the states and even other nations, the Michigan Environmental Protection Act.

In July, the Michigan Supreme Court repealed the heart of MEPA by decree.

In a narrow, 4-3 decision typical of its conservative-progressive ideological split in recent years, the right-wing majority decided the Legislature never had a right to pass such a law. In doing so, the Court sought to take Michigan back to the good old days when polluters and government bureaucrats could settle matters among themselves, without the messy intervention of citizens.

"I thought this was a nation of and by and for the people," said Joan Wolfe, the founder of the West Michigan Environmental Council who lobbied furiously for MEPA in 1970. "The Supreme Court has overstepped its bounds."

The ruling involved an historic legal fight between members of Michigan Citizens for Water Conservation, a grass-roots group and international corporate giant Nestle over its water pumping and bottling operations in west Michigan. The majority opinion had the effect of stopping some of the organization's claims, while sending the case itself back to lower courts for further action.

Let's take a trip down environmental memory lane. In 1970, public outrage about sickening air & water pollution was cresting. Ohio's Cuyahoga River had attracted national news coverage the previous year by catching fire. Frightening levels of mercury pollution were detected in Lake St. Clair and Detroit River fish. Black smoke filled the sky over industrial cities. Some feared the planet was dying - or at least the human species that depended on it.

Into this scene came Wolfe's environmental council with a simple but radical proposal called MEPA. Fulfilling a mandate of the 1963 State Constitution that called on the Legislature to protect the air, water and other natural resources of Michigan from "pollution, impairment or destruction", Wolfe and allies wanted a law that would enable any citizen of Michigan to go to court to defend those resources.

The idea was that government agencies, then as now, were often reluctant to get tough with polluters. A tradition of back room negotiating had helped lead to the downward spiral of environmental health. MEPA, its supporters argued, in effect would deputize any citizen of Michigan to take direct action to conserve natural resources.

Industry hated the idea.

The state chamber of commerce said the proposed law "would create a serious threat to the operation and growth of business and industryŠa complete bar to the current method of voluntary and workable cooperation between industry and governmentŠ" Another business association said MEPA would stop all economic development in the state.

But the public wasn't convinced. At a January 1970 committee hearing in the House chambers to accommodate hundreds of MEPA supporters and a lesser number of critics, law student Roger Conner emotionally testified, "We must exhaust every effort to see that a citizen has the right - if his life-support system is being destroyed - to go to court rather than into the streets." Hundreds turned out for subsequent hearings and in July 1970, Governor William G. Milliken signed MEPA into law.
There it stood, a modest but important instrument for protecting Michigan - until the Supreme Court majority took a big bite out of the law on July 25th.

How did they do it?

By constructing an argument based on the United States, not the Michigan Constitution, that only the courts can decide who comes before them, and the courts won't let those come before them who aren't directly affected by the action they're trying to stop or prevent.

The majority's application of the "cases and controversies" language of standing in Article III, Section 2 of the U.S. Constitution - which has been construed to require specific injury to a plaintiff before standing to sue is achieved - struck some legal observers as a gross legal over-reach, since the case at issue here was brought under the state Constitution and MEPA.

"They're just wrong," said Joseph Sax the former University of Michigan law professor who authored the initial draft of MEPA in 1969. "This doesn't have anything to do with federal law. If a state wants to grant someone a legal right to protect the quality of the environment, it can do that."

MEPA, in saying 'any person' could go to court to protect the environment, violated the separation of powers doctrine, and was out of line. In other words, the Court said if you live in Saginaw or Bay City and are determined to stop a sulfide mine from poisoning an Upper Peninsula stream, no state law can give you access to the courts to stop it. You have to show the mine will affect you personally, not just the environment of the state you love.

The author of the ruling, Justice Robert Young, was contemptuous of arguments that the interconnectedness of air, water and land means all Michigan citizens have a stake in the health of the environment. Such a doctrine would "justify the standing of anyone but a Martian" to sue Michigan polluters, he said.

Justice Elizabeth Weaver, one of the dissenters, charged that Young and the majority had applied 'faux and inapplicable constitutional principles." She wrote that they have "taken the power to protect the state's natural resources away from the people of Michigan" despite the state constitution's explicit finding that such protection is a "paramount public concern."

David Holtz, the Michigan director of Clean Water Action in East Lansing, called the ruling "a brazen power grab and feat of judicial activism." He added, "Michigan's future is much more at risk today because of the court's attack on Michigan's constitutionally protected natural resources."

Milliken, now 85 and retired in Traverse City, also deplored the ruling. "It was clearly the intent of the Legislature and clearly my intent when I signed that bill that any citizen would have the right to sue. They (the Supreme Court) have so narrowed down the ability of a person to bring a lawsuit, it has negated the intent of the Legislature."
So what's anyone going to do about it? In the wake of the ruling, there were mutterings about a Constitutional amendment proposal to be placed before voters in 2007. There was also talk of running a progressive candidate against incumbent arch-conservative Chief Justice Clifford Taylor, a key member of the right-wing Gang of Four. But the conservation and environmental communities seemed unsure and scattered about what to do.

Only two people on the environmental side seemed to have any fire, Wolfe, who is now 78 and living in Frankfort said, "Citizens should be able to enforce environmental laws when the government won't act, and the legislature gave them that right under our state constitution. That's the simple but profound principle behind MEPA."

Jim Olson, a Traverse City attorney who successfully employed MEPA to win a landmark decision for Michigan Citizens for Water Conservation in the lower courts, fumed: "It's time for all citizens to take standing, our air, water and public trust into their hands. The Constitution is of and for the people. These issues belong to the people. It is time for massive unified action, without regard to our politics, to demand respect for and protection of the environment by the Supreme Court, since that's what our Constitution and laws demand. If necessary, this means citizens should petition to amend the Constitution of the state to make it clear to the Court, that when the people declare the environment is of paramount concern and the legislature shall pas laws to protect it, they mean it."

The Michigan Supreme Court majority was betting that too few would join Wolfe or Olson in overturning the ruling to make a difference.