07/26/2007

Editorial

Engler Majority mangling state environmental law

Former Gov. John Engler's Gang of Four has once again chipped away at your rights as a Michigan citizen. In the process, they have also pushed us closer to a time when water — the state's most precious asset — can be bought and sold like cornflakes.

At the urging of attorneys for Nestlé Waters North America, a four-justice majority of the state Supreme Court ruled Wednesday that Michigan's seminal Environmental Protection Act, which gave any citizen the standing to sue to protect the environment, doesn't actually mean any citizen.

It was an affront to common sense, the rule of law and the English language. Despite the fact that all four of the justices involved are far-right Republicans, the ruling was as glaring an example of activist judges changing legislative intent that you'll ever see.

Read it for yourself. This is Section 1701 of the 1970 law. Italics are added:

"Sec. 1701. (1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.”

The Engler Majority, however, decided that any person actually means any person who can show to the court's satisfaction that he or she actually uses the air, water and other natural resources in question and can prove "specific, particularized harm” by the pollution, impairment or destruction of those resources.

That spin is a far, far cry from the crystal-clear language of the act and protects only those doing harm.

State lawmakers didn't add the words "specific, particularized harm” when they passed the Act in 1970. And supporting sections clearly show the intent was to allow anyone to intervene on behalf of state resources.

But Chief Justice Clifford Taylor (appointed by Engler) and justices Robert Young Jr. (appointed by Engler), Stephen Markman (appointed by Engler) and Maura Corrigan (appointed by Engler to the Court of Appeals) decided that either any person doesn't actually mean any person or that lawmakers didn't really mean any person even though that's what they wrote or they were simply wrongheaded.

In any case, it was anything but a "literalist” interpretation of the constitution, despite the Engler Majority's claims that the law is what is written and no more. It was activism, pure and simple, and a continuation of the majority's continued effort to limit citizen access to the courts.

In a dissent, Justice Elizabeth Weaver (Justices Michael Cavanagh and Marilyn Kelly also dissented) said the Constitution gives the Legislature broad powers to protect the environment, including empowering citizen lawsuits. That is certainly what Sec. 1701. (1) says.

All this, of course, will make it much more difficult for neighbors or environmentalists to sue to halt activities they think are harming the environment. It's practically an invitation for the wider export of state water.

In the case at hand, neighbors of Nestlé's Ice Mountain bottled water plant in Stanwood claimed the plant was lowering water levels and flows in neighboring lakes, streams and wetlands.

The Engler Majority said the neighbors had standing to intervene on possible damage to Dead Stream and Thompson Lake in Mecosta County but not a nearby lake and three wetlands because they don't use those areas and couldn't, therefore, prove "specific, particularized harm.”

The plant bottled 226 million gallons of Ice Mountain water last year.

Clearly, this is not what lawmakers had in mind when they passed the law in 1970, and it is a safe bet that it's not what a vast majority of state citizens would think, either.

But we're stuck with an activist court all too willing to bend to the demands of commerce at the expense of individual rights.