Court Limits Ability of “Any Person” to Protect Michigan’s Environment

This case examined whether “any person” may bring a lawsuit to prevent environmental harm in Michigan, as explicitly stated in the Michigan Environmental Protection Act (MEPA), which was written to comply with the Michigan Constitution. The majority ruled that “any person” could not sue under MEPA because the majority adopted federal principles of standing (the ability to sue) based on a provision in the federal Constitution which does not appear in the Michigan Constitution. While the majority ruled that National Wildlife Federation met the new standing requirements in this case, the new rule created by the majority’s opinion eliminated one of the most important state-level environmental protection provisions in the country. Fortunately, this ruling was overturned in the 2010 case Lansing Schools Education Association v. Lansing Board of Education, but not before it negatively impacted the ability of Michigan citizens to protect their environment for years in between.

The National Wildlife Federation (NWF) sued under the Michigan Environmental Protection Act (MEPA) to block Cleveland Cliff’s expansion of its mine in the Upper Peninsula. The NWF brought the suit on behalf of several of its members who recreated and farmed near the mine and were concerned about recreational and aesthetic damage to the area. The Court determined that the NWF had standing to bring the suit – in other words, the right to challenge the mine’s expansion on behalf of these members. However, the Court also implied that the standing requirements to bring a MEPA suit are more stringent than suggested by the statute’s language. Though MEPA says that “any person” can sue based on potential or actual environmental harm, the Court suggested that, in order to sue under any Michigan statute, a person must show that they have a stake beyond a general interest in seeing the law enforced.

The National Wildlife Federation (NWF) sued under the Michigan Environmental Protection Act (MEPA) on behalf of it members to stop Cleveland Cliff’s expansion of its mine in the Upper Peninsula. To support its ability to sue, NWF produced affidavits from some of its members. These members alleged that they canoed, bird-watched, hiked, and farmed near the mine, and that they were concerned that the mine expansion would irreparably harm their recreational and aesthetic enjoyment of the area. One member alleged that his well on property next to the mine was almost dry because mining operations were drawing from the aquifer. NWF also presented an affidavit from an expert who testified about the scientific effects of expanded mining operations on the local environment. The trial court found that NWF lacked standing, but the Court of Appeals reversed, finding that MEPA allows “any person” to bring suit. The Michigan Supreme Court agreed to hear the case and particularly to consider whether the legislature can confer standing on a person who might not otherwise have standing to sue.

Does the National Wildlife Federation have standing to sue? Can the legislature confer standing on a party who does not satisfy the judicial test for standing?

The majority determined that NWF did have standing to sue based on the test for standing outlined in Lee v. Macomb County Board of Commissioners. In Lee, the Court held that parties must meet three requirements to have standing to sue. First, they must show that they are facing an “injury in fact” – a concrete, particularized, and actual or imminent harm. Second, they must show that there is a causal connection between the injury and the challenged conduct. Third, they must show that the injury will be addressed by a decision in the party’s favor. These requirements for standing are the same ones used by the federal courts. The majority argued that these standing requirements are crucial to ensuring the separation of powers between the executive, legislative, and judicial branches of government. The judiciary’s job is to decide concrete disputes, not to make policy or to enforce the law. Because NWF could establish that its members were in danger of suffering an “injury in fact,” the Court majority did not need to directly rule on the constitutionality of MEPA’s citizen suit provision. However, the majority’s embrace of the Lee standing requirements strongly suggests that a person suing under MEPA would have to demonstrate an “injury in fact,” despite MEPA’s language allowing “any person” to bring suit.

Justice Weaver, concurring in the result only, agreed that NWF has standing, but was troubled by the majority’s treatment of MEPA. She would have held that NWF has standing under MEPA, because MEPA allows “any person” to bring suit as long as there is potential or actual harm to Michigan’s environment. She noted that the Michigan constitution provides that “the conservation and development of the natural resources of the state are hereby declared to be of paramount public concern.” And that “[t]he legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” In enacting MEPA, the legislature was specifically carrying out this constitutional duty. To Justice Weaver, the standing requirements of Lee are a judicial creation that should not frustrate the constitutional dictate of environmental protection by restricting who can bring MEPA suits.

Justice Cavanagh, concurring in the result only, agreed with Justice Weaver, but wrote separately to underscore his change in view that the Lee test should not be applied in MEPA cases.

Justice Kelly, concurring in the result only, emphasized her view that the “judge-made” Lee standing requirements are inapplicable to MEPA and incompatible with Michigan constitutional provisions allowing citizen suits.