National Wildlife Federation v. Cleveland Cliffs Iron Co.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 30, 2004

NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA WILDLIFE
COUNCIL

Plaintiffs-Appellees,

v No. 121890

CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP

Defendants-Appellants,

and

MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSELL J. HARDING, Director
Of the Michigan Department of
Environmental Quality,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

This case presents the question of whether plaintiffs

have standing to bring a suit on behalf of their members

under the Michigan Environmental Protection Act (MEPA), MCL

324.1701 et seq. We conclude that, under the particular

circumstances of this case, plaintiffs have standing. We
affirm the decision of the Court of Appeals and remand this

case to the trial court for further proceedings.

I. BACKGROUND

Defendant Cleveland Cliffs Iron Company (Cleveland

Cliffs), in partnership with defendant Empire Iron Mining

Partnership, planned to expand operations at the Empire

Mine in Michigan’s Upper Peninsula. Cleveland Cliffs

applied for a permit through the Michigan Department of

Environmental Quality (MDEQ), which held a public hearing to

receive public comment. Eventually, the MDEQ issued the

permit.

Plaintiffs, on behalf of their members, filed a

petition for a contested case hearing with the MDEQ. The

hearing referee held that plaintiffs lacked standing and

dismissed the matter. Plaintiffs then appealed to the

Marquette Circuit Court, which affirmed the referee’s

dismissal, and the Court of Appeals denied plaintiffs’

application for leave to appeal.

Meanwhile, plaintiffs filed suit in Ingham Circuit

Court (venue was later changed to Marquette County),
1
including a count asserting a claim under MEPA. Plaintiffs

1
MCL 324.1701(1) provides:
(continued . . . .)

2

sought a temporary restraining order and a preliminary

injunction of further mine expansion. The trial court

denied the injunction, finding that plaintiffs lacked

standing. Plaintiffs appealed, and the Court of Appeals

reversed.2 The Court analyzed the statute and found that it

simply permitted “any person” to bring suit.

This Court granted leave, limited to the issue of

“whether the Legislature can by statute confer standing on

a party who does not satisfy the judicial test for

standing. See Lee v Macomb Co Bd of Comm’rs, 464 Mich 726

[629 NW2d 900] (2001).”3

(continued . . . .)
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.

MCL 324.1704(1) provides:
The court may grant temporary and permanent
equitable relief or may impose conditions on the
defendant that are required to protect the air,
water, and other natural resources or the public
trust in these resources from pollution,
impairment, or destruction.
2
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
unpublished memorandum opinion, issued June 11, 2002
(Docket No. 232706).
3
468 Mich 944 (2003).

3

 II. STANDARD OF REVIEW

Whether a party has standing is a question of law that

we review de novo. Lee, supra at 734.

III. STANDING

First, contrary to the three concurring/dissenting

opinions, one of which "disavows" its past support for Lee,

supra, one of which reaffirms its past opposition to Lee,

and one of which maintains its support for Lee while

distinguishing it into nothingness, we reaffirm our support

for the principles of standing set forth in Lee, and

explain the importance of Lee for our constitutional system

of separated powers and for the preservation of a judiciary

operating within proper boundaries.4

4
Justice WEAVER'S concurrence/dissent views the
majority's ultimate determination concerning whether
plaintiffs possess standing as a foregone conclusion in
light of the majority's continued support for Lee. It is
wrong in this assertion. In fact, we agree with the United
States Supreme Court in Lujan v Defenders of Wildlife, 504
US 555, 578; 112 S Ct 2130; 119 L Ed 2d 351 (1992), which,
although holding, as Lee does, that standing is of
constitutional dimension, proceeds to observe that
“[n]othing in this contradicts the principle that ‘the
. . . injury required by Art. III may exist solely by
virtue of statutes creating legal rights, the invasion of
which creates standing.’” This is affirmed in the
concurring opinion of Justice Kennedy, joined by Justice
Souter, in which they similarly observe, “Congress has the
power to define injuries and articulate chains of causation
that will give rise to a case or controversy where none
existed before, and we do not read the Court's opinion to
suggest a contrary view.” Id. at 580.

4

 The Michigan Constitution provides that the

Legislature is to exercise the “legislative power” of the

state, Const 1963, art 4, § 1, the Governor is to exercise

the “executive power,” Const 1963, art 5, § 1, and the

judiciary is to exercise the “judicial power,” Const 1963,

art 6, § 1. The importance of these allocations of power

is reaffirmed in Const 1963, art 3, § 2, which states:

The powers of government are divided into
three branches: legislative, executive and
judicial. No person exercising powers of one
branch shall exercise powers properly belonging
to another branch except as expressly provided in
this constitution.

By separating the powers of government, the framers of

the Michigan Constitution sought to disperse governmental

power and thereby to limit its exercise. “[T]here [is] no

liberty . . . if the power of judging be not separated from

the legislative and executive powers.” Madison, The

Federalist No 47.5

As a term that both defines the role of the judicial

branch and limits the role of the legislative and executive

branches, it is clear that the scope of the “judicial

5
The separation of powers provision in each of
Michigan's Constitutions is “in harmony with American
political theory, the State government [being] divided into
the three historic departments, the legislative, executive,
and judicial . . . .” Schwartz v Flint, 426 Mich 295; 395
NW2d 678 (1986) (citation omitted).

5

power” is a matter of considerable constitutional

significance. Given the final authority of the judicial

branch to accord meaning to the language of the

constitution, the term “judicial power” cannot ultimately

be defined by the Legislature any more than “unreasonable

searches and seizures”6 or the “equal protection of the

laws”7 can ultimately be defined by the Legislature.8

The “judicial power,” although not specifically

defined in the Michigan Constitution, is distinct from both

the legislative and executive powers. As former Justice

THOMAS COOLEY has written:

It is the province of judicial power [] to
decide private disputes between or concerning
persons; but of legislative power to regulate
public concerns, and to make law for the benefit
and welfare of the state. [Cooley, A Treatise on
the Constitutional Limitations (Little, Brown &
Co, 1886) at 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

6
Const 1963, art 1, § 11.
7
Const 1963, art 1, § 2.
8
In short, the deference that the concurrence/dissents
purport to give to the Legislature is misplaced for the
deference owed by this Court must first be to the
constitution and only then to the coordinate branches of
our state government.

6

hypothetical questions; the plaintiff who has suffered real

harm; the existence of genuinely adverse parties; the

sufficient ripeness or maturity of a case; the eschewing of

cases that are moot at any stage of their litigation; the

ability to issue proper forms of effective relief to a

party; the avoidance of political questions or other non-

justiciable controversies; the avoidance of unnecessary

constitutional issues; and the emphasis upon proscriptive

as opposed to prescriptive decision making.

Perhaps the most critical element of the “judicial

power” has been its requirement of a genuine case or

controversy between the parties, one in which there is a

real, not a hypothetical, dispute, Muskrat v United States,

219 US 346; 31 S Ct 250; 55 L Ed 246 (1911), and one in

which the plaintiff has suffered a “particularized” or

personal injury. Massachusetts v Mellon, 262 US 447, 488;

43 S Ct 597; 67 L Ed 2d 1078 (1923). Such a

“particularized” injury has generally required that a

plaintiff must have suffered an injury distinct from that

of the public generally. Id.

Absent a “particularized” injury, there would be

little that would stand in the way of the judicial branch

becoming intertwined in every matter of public debate. If

a taxpayer, for example, opposed the closing of a tax

7

“loophole” by the Legislature, the legislation might be

challenged in court. If a taxpayer opposed an expenditure

for a public building, that, too, might be challenged in

court. If a citizen disagreed with the manner in which

agriculture officials were administering farm programs, or

transportation officials’ highway programs, or social

services officials’ welfare programs, those might all be

challenged in court. If a citizen opposed new prison

disciplinary policies, that might be challenged in court.

In each instance, the result would be to have the

judicial branch of government—the least politically

accountable of the branches—deciding public policy, not in

response to a real dispute in which a plaintiff had

suffered a distinct and personal harm, but in response to a

lawsuit from a citizen who had simply not prevailed in the

representative processes of government. To allow the

judiciary to carry out its responsibilities in this manner

is to misperceive the “judicial power,” and to establish

the judicial branch as a forum for giving parties who were

unsuccessful in the legislative and executive processes

simply another chance to prevail. To allow this authority

in the judiciary would also be to establish the judicial

branch as first among equals, being permitted to monitor

and supervise the other branches, and effectively

8

possessing a generalized commission to evaluate and second-

guess the wisdom of their policies. As the United States

Supreme Court observed in Mellon:

The administration of any statute . . . is
essentially a matter of public and not of
individual concern. . . . The party who invokes
the [judicial] power must be able to show not
only that the statute is invalid but that he has
sustained or is immediately in danger of
sustaining some direct injury as the result of
its enforcement, and not merely that he suffers
in some indefinite way in common with the people
generally. . . . To [allow standing under a
different understanding] would be not to decide a
judicial controversy, but to assume a position of
authority over the governmental acts of another
and co-equal department, an authority which we
plainly do not possess. [Id. at 487-489.]

When a broadening and redefinition of the “judicial

power” comes not from the judiciary itself, usurping a

power that does not belong to it, but from the Legislature

purporting to confer new powers upon the judiciary, the

exercise of such power is no less improper. The acceptance

by one branch of the expansion of the powers of another

branch is not dispositive in whether a constitutional power

has been properly exercised. When the Legislature

redefines the “judicial power” by expanding the realm of

disputes cognizable by the judiciary, such expanded power

on the part of the courts invariably comes at the expense

of the executive, whose policies then become subject to the

perpetual review and revision of the courts. As the United

9

States Supreme Court observed in Lujan v Defenders of

Wildlife, 504 US 555, 576-577; 112 S Ct 2130; 119 L Ed 2d

351 (1992):

Vindicating the public interest (including
the public interest in Government observance of
the Constitution and laws) is the function of the
Congress and the Chief Executive. . . . To permit
Congress to convert the undifferentiated public
interest in executive officers’ compliance with
the law into an “individual right” vindicable in
the courts is to permit Congress to transfer from
the President to the courts the Chief Executive’s
most important constitutional duty, to “take Care
that the Laws be faithfully executed,” Art II, §
3. It would enable the courts, with the
permission of Congress, “to assume a position of
authority over the governmental acts of another
and co-equal department,” and to become
“virtually continuing monitors of the wisdom and
soundness of Executive action. We have always
rejected that vision of our role . . . .
[Citations omitted; emphasis in original.]

“We must as judges recall that, as Mr. Justice Holmes

wisely observed, the other branches of Government ‘are

ultimate guardians of the liberties and welfare of the

people in quite as great a degree as the courts.’” Flast v

Cohen, 392 US 83, 131; 88 S Ct 1942; 20 L Ed 2d 947 (1968)

(Harlan, J., dissenting), quoting Missouri, Kansas & Texas

R Co v May, 194 US 267, 270; 24 S Ct 638; 48 L Ed 971

(1904).

Despite the remarkable statement in Justice WEAVER’S

concurrence/dissent, post at 6 that the majority “expands

the power of the judiciary,” the exact opposite is true.

10

By its adherence to Lee, the majority opinion rejects a

constitutional regime in which the judicial branch can be

invested with extra-constitutional powers at the expense of

the other branches, in particular the executive. One need

only be a casual student of government to recognize the

extraordinary rarity of an institution of government, such

as this Court, choosing, on the basis of constitutional

objection, not to exercise a power conferred upon it by

another branch of government. It is impenetrable reasoning

to equate such an abnegation of power with an enhancement

of power.

The requirement of a genuine case or controversy as a

precondition for the exercise of the “judicial power” is

not a mere fine point of constitutional law. Rather, as

Professor Alexander Bickel once wrote,

[There are] sound reasons, grounded not only
in theory but in the judicial experience of
centuries, here and elsewhere, for believing that
the hard, confining, and yet enlarging context of
a real controversy leads to sounder and more
enduring judgments. [Bickel, The Least Dangerous
Branch (2d ed) (Yale University Press, 1986) at
115.]

Professor Bickel proceeded to observe that a contrary

result in Mellon—one failing to recognize the importance of

a plaintiff having suffered an “immediate, personal injury”

in order to have standing to bring a lawsuit—would have

“materially altered the function of judicial review and

11

seriously undermined any acceptable justifications for it.”

Id. at 122.9 Justice Robert Jackson has similarly written

that the case or controversy requirement of the federal

constitution is “perhaps the most significant limitation

upon judicial power.” The Role of the Supreme Court in the

American System of Government (Harvard University Press,

1955) at 101. And Justice Antonin Scalia has observed:

The Judiciary would be, “from the nature of
its functions, . . . the [department] least
dangerous to the political rights of the
constitution,” not because its acts were subject
to legislative correction, but because the
binding effect of its acts was limited to
particular cases and controversies. [Plaut v
Spendthrift Farms, 514 US 211, 223; 115 S Ct
1447; 131 L Ed 2d 328 (1995), quoting Hamilton,
The Federalist, No 78.]

9
Professor Kenneth Karst has written in the Oxford
Companion to the Supreme Court (Oxford University, 1992),
“By tying the court’s power of constitutional
interpretation to their its power to decide cases, Marshall
founded the legitimacy of judicial review on its connection
to that case-deciding function.” Id. at 458. Professor
Karst writes further:
In general, when governmental officials act,
only someone who is personally injured by those
acts has standing to complain that they are
unlawful. Generally, a plaintiff does not
satisfy the requirement of standing by alleging
that governmental action was unconstitutional, if
the only harm alleged has been caused by someone
else, or if the illegality in question is only a
violation of some other person’s legal right.
[Id.]

See also Lujan, supra at 562.

12

 The concurrence/dissents, stating that they would

overrule Lee, would erode one of the most significant

barriers protecting the people from government by the

judiciary. As Justice Harlan warned in his dissent in

Flast, supra at 130, “There is every reason to fear that

unrestricted public actions might well alter the allocation

of authority among the three branches of the Federal

Government.” In United States v Richardson, 418 US 166,

188; 94 S Ct 2940; 41 L Ed 2d 678 (1974), Justice Powell

observed, “[r]elaxation of standing requirements is

directly related to the expansion of judicial power . . .

significantly alter[ing] the allocation of power at the

national level, with a shift away from a democratic form of

government.” And in Lewis v Casey, 518 US 343, 349-350;

116 S Ct 2174; 135 L Ed 2d 606 (1996), the Supreme Court

opined:

It is the role of courts to provide relief
to claimants . . . who have suffered, or will
imminently suffer, actual harm; it is not the
role of courts, but that of the political
branches, to shape the institutions of government
in such fashion as to comply with the laws and
the Constitution. . . . [T]he distinction between
the two roles would be obliterated if, to invoke
intervention of the courts, no actual or imminent
harm were needed, but merely the status of being
subject to a governmental institution that was
not organized or managed properly.

When courts exceed the “judicial power,” the interests of

some other branch of government necessarily must be

13

implicated and, as already observed, these normally will be

the interests of the executive branch. As then-Professor,

later-Justice Scalia put it:

[T]he law of standing roughly restricts
courts to their traditional undemocratic role of
protecting individuals and minorities against
impositions of majorities, and excludes them from
the even more undemocratic role of prescribing
how the other two branches should function in
order to serve the interests of the majority
itself. [Scalia, The doctrine of standing as an
essential element of the separation of powers, 17
Suffolk U L Rev 881, 894 (1983).]

Professor Kenneth Karst has described some of the

practical implications of relaxing the case or controversy

requirement in greater detail:

These developments in jurisdictional
doctrine are representative of the emergence of
what Abram Chayes has called “public law”
litigation. In the traditional common-law model
of a lawsuit there is one plaintiff and one
defendant; the plaintiff personally initiates the
lawsuit, and on both sides the parties control
the conduct of the case; the parties' dispute
concerns legal obligations founded on facts in
the past; the remedies requested are closely
fitted to the specific rights of the plaintiff;
and the case culminates in a single trial and a
single judgment. If, however, a class of
plaintiffs sues a governmental institution such
as a school board or the managers of a state
hospital or prison, the lawsuit is likely to
diverge from the common-law model. Public
interest lawyers may invent the lawsuit and then
go out to find some plaintiffs. . . . The whole
process has a “legislative” or even
“administrative” look. The interests of the
particular parties in whose name the suit was
filed seem secondary. [Oxford Companion to the
Supreme Court, supra at 458-459.]

14

In this process, the authority of the executive branch is

replaced by the authority of the judiciary, public policy

decisions increasingly come to be made exclusively by

lawyers in robes, the negotiation and compromise and give-

and-take of the representative processes is replaced by the

absolutist “rights” analyses of individual judges, and

local control of public decision making comes increasingly

to be replaced by unaccountable judicial decision making.

One committed to a governmental system in which most

important public policy decisions are eventually made by

the courts, and in which the representative processes

increasingly become little more than a prelude to judicial

decision making, would, almost certainly, begin by

dismantling longstanding and traditional preconditions to

the exercise of the “judicial power” reflected in the

concept of standing.10

Thus, we continue to adhere to Lee, and conclude that

Lee was correct in its holding that questions of standing

implicate the constitutional separation of powers, and that

10
“This explicit requirement [of a case or
controversy] is the constitutional key to understanding the
forms and limits of judicial power.” McDowell, Curbing the
Courts (Louisiana State Press, 1988) at 195. Standing was
restricted to certain forms “so as not to allow the judges
a ‘roving commission to do good.’” Id. at 172.

15

forsaking this proposition “would imperil the

constitutional architecture . . . .” Id. at 735. As the

United States Supreme Court observed in Allen v Wright, 468

US 737, 751-752; 104 S Ct 3315; 82 L Ed 2d 556 (1984):

The requirement of standing . . . has a core
component derived directly from the Constitution.

* * *

[T]he law of Art. III standing is built on a
single basic idea—the idea of separation of
powers. . . . [Q]uestions . . . relevant to the
standing inquiry must be answered by reference to
the Art. III notion that federal courts may
exercise power only “in the last resort, and as a
necessity,” and only when adjudication is
“consistent with a system of separated powers and
[the dispute is one] traditionally thought to be
capable of resolution through the judicial
process.” [Quoting Chicago & Grand Trunk R Co v
Wellman, 143 US 339, 345; 12 S Ct 400; 36 L Ed
176 (1892) and Flast, supra at 97.]

See also Lujan, supra at 561.

If the Legislature were permitted at its discretion to

confer jurisdiction upon this Court unmoored from any

genuine case or controversy, this Court would be

transformed in character and empowered to decide matters

that have historically been within the purview of the

Governor and the executive branch. If there is dispute

over the manner in which the Governor is enforcing or

administering a law, such dispute, in the normal course,

must be resolved through the executive process. If there

are citizens who believe the Governor is wrongfully or

16

inadequately enforcing or administering the state’s

consumer protection or occupational safety or worker’s

compensation or revenue laws, it is their right to petition

or lobby the Governor in order to alter these policies. It

is also the right of such citizens to petition or lobby the

Legislature in order to cause them to alter these laws.

Finally, of course, it is the right of citizens to

participate in the channels of public debate, and in the

political processes, in order to influence public policies,

or to place in public office persons who more accommodating

to their points of view. Unless there is an individual who

has personally been injured by the Governor’s enforcement

or administration of these laws, it is not normally the

role of the judicial branch to monitor the work of the

executive and determine whether it is carrying out its

responsibilities in an acceptable fashion. That the

Legislature—perhaps even with the acquiescence of the

executive—has purported to impose this role upon the

judicial branch does not alter this constitutional reality.

See, e.g., Hayburn’s Case, 2 US (2 Dall) 409; 1 L Ed 436

(1792), in which the United States Supreme Court refused to

accept as part of its “judicial power” the responsibility

imposed upon it by the Congress of examining the pension

claims of Revolutionary War veterans. The Court concluded

17

that the Congress could not “constitutionally assign to the

Judiciary any duties, but such as are properly judicial,

and to be performed in a judicial manner,” id. at 410; see

also Osborn v Bank of United States, 22 US (9 Wheat) 738; 6

L Ed 204 (1824).11

Justice WEAVER'S efforts to distinguish between the

United States and the Michigan constitutions in defining

the "judicial power" are unconvincing. She misapprehends

both of these constitutions.

11
Almost certainly, the analyses of the
concurrence/dissents invite further efforts to redefine the
“judicial power” in questionable ways. See, e.g., Plaut v
Spendthrift Farms, supra, in which the Congress sought to
require the Supreme Court to retroactively reopen final
judgments, judgments that were apparently unpopular with
the Congress. Two justices, Stevens and Ginsburg, in
dissent indicated their willingness to accept this modified
conception of the “judicial power.” “We must remember that
the machinery of government would not work if it were not
allowed a little play in its joints.” Id. at 266 (Stevens,
J., dissenting), quoting Bain Peanut Co v Pinson, 282 US
499, 501; 51 S Ct 228; 75 L Ed 482 (1931). Nor, when the
“judicial power” becomes a mere function of legislative
determination, is there any guarantee that this authority
will only be broadened. The concurrence/dissents have no
principled way of addressing efforts by the legislative
branch to contract, rather than to expand, the “judicial
power.” In this regard, see the brief amicus curiae of
Joseph L. Sax at 9 in which Professor Sax appears to argue
that Const 1963, art 6, § 13, conferring jurisdiction upon
the circuit courts “in accordance with rules of the Supreme
Court,” enables this Court to confer jurisdiction upon the
circuit court through our rules without regard to the
boundaries of the “judicial power.”

18

 In the first section of the judicial articles of the

federal and the Michigan constitutions, their respective

judicial branches are vested simply with the “judicial

power.” The federal constitution states, “The judicial

Power of the United States shall be vested in one supreme

Court, and in such inferior Courts as the Congress may from

time to time ordain and establish.” US Const, art III, §

1. The Michigan Constitution states, “The judicial power

of the state is vested exclusively in one court of justice

. . . .” Const 1963, art 6, § 1. The purpose of these

sections is to define—equivalently to what has been done

earlier in the first sections of the legislative and

executive articles—the scope of authority of the judicial

branch. That authority consists exclusively of the

“judicial power.”

Nothing further is said in either of these

constitutions specifically defining the “judicial power,”

with three exceptions in the Michigan Constitution, each of

which undercut the argument of the concurrence/dissents

that there is no fixed meaning to the “judicial power” and

that it is susceptible to constant redefinition at the

19

discretion of the other branches.12 Const 1963, art 3, § 8

allows either house of the Legislature to request the Court

to issue an “advisory opinion” on the “constitutionality of

legislation”; Const 1963, art 9, § 32 confers upon “any

taxpayer of the state” standing to bring suit to enforce

the provisions of the so-called Headlee Amendment; and

Const 1963, art 11, § 5 empowers “any citizen of the state”

to bring injunctive or mandamus proceedings to enforce the

civil service laws of the state. To the extent that the

people of Michigan, through their constitution, have chosen

to confer upon the judiciary three specific authorities

potentially beyond the traditional “judicial power,” it

seems unlikely that the people intended that any other such

nontraditional authority could simply be incorporated as

12
If the “judicial power” can be redefined at the
behest of the legislative or executive branches, one
wonders why, under the analyses of the
concurrence/dissents, it cannot also be redefined at the
behest of the judicial branch itself, for why should that
branch alone be disabled in its ability to give new meaning
to this constitutional term? There is no principled reason
from the perspective of the concurrence/dissents why a
court could not expand upon its own authority by
disregarding traditional restraints upon the exercise of
the “judicial power.” By transforming the “judicial power”
from a concept of constitutional stature into a mere
prudential concept, to be decided absent any readily-
discernible standards, the concurrence/dissents would give
considerable impetus to a more powerful judicial branch at
the expense of coordinate branches of government.

20

part of the “judicial power” by a simple majority of the

Legislature.13

The concurrence/dissents find relevant that the

federal constitution diverges from the Michigan

Constitution where, in art III, § 2, it states:

The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their Authority;—to all Cases affecting
Ambassadors, other public Ministers and Consuls;—
to all Cases of admiralty and maritime
Jurisdiction;—to Controversies to which the
United States shall be a Party;—to Controversies
between two or more States;—between a State and
Citizens of another State;—between Citizens of
different States;—between Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens
thereof, and foreign states, Citizens or
[14]
Subjects. [Emphasis added.]

Contrary to what is implicit in the concurrence/dissents,

this is not a definitional provision that seeks to give

meaning to the “judicial power.” Rather, art III, § 2 is a

provision defining the limited judicial power of the

13
Justice KELLY interprets these provisions, conferring
broader-than-traditional standing in specific areas of the
law, as conferring broader-than-traditional standing in any
area of the law in which the legislature chooses to confer
such standing. Post at 7, n 5. The majority draws exactly
the opposite inference from these provisions.
14
Although it is not relevant to the instant analysis,
several of these provisions have been subsequently rendered
effectively null and void by the Eleventh Amendment.

21

federal judiciary, in contrast to the plenary judicial

power of the state judiciary. The respective legislative

articles of the two constitutions are analogous to the

judicial articles: the legislative article of the Michigan

Constitution does not purport to define the authority of

its Legislature (for example, nothing is said therein

concerning its authority over marriage, divorce, child

custody, child support, alimony, or foster care), while the

legislative article of the federal constitution does

affirmatively confer authority upon the Congress, article

I, § 8. The state judicial power, as with the state

legislative power, is plenary, requiring no affirmative

grant of authority in the state constitution. The federal

judicial power, on the other hand, as with the federal

legislative power, is limited. Such power is exclusively a

function, or a creation, of the federal constitution, and,

therefore, must be affirmatively set forth. In similar

fashion, the federal judicial power must also be

affirmatively set forth, for it is also a function, or

creation, of the federal constitution. Thus, US Const, art

III, § 2 does not define the “judicial power”; rather it

defines what part of the “judicial power” within the United

States belongs to the federal judiciary, with the remaining

part belonging exclusively to the state judiciary. That

22

art III, § 2 variously employs the terms “cases” or

“controversies” is not to confer a particular meaning upon

the “judicial power,” but merely is to employ words that

are necessary to the syntax of allocating the “judicial

power” between the federal and state governments.15 The

concurrence/dissents would confuse the allocation of a

power with its definition, and would thereby define the

federal “judicial power” in the narrowest possible manner

by limiting it through reference alone to the existence of

a “case.”16 Even from the perspective of the

15
“In the Constitution of the United States, we
perceive, not the express creation of a judicial power, but
the recognition of it as a necessary part of the government
. . . .” Rawle, A View of the Constitution of the United
States (Nicken, Philadelphia, 1829) ch 21, pp 199-200.
16
Although Madison suggested at the constitutional
convention that the federal “judicial power” ought to be
“limited to cases of a Judiciary Nature,” II Farrand,
Records of the Federal Convention of 1787 (Yale University,
1966) at 430, there is remarkably little discussion in the
Federalist Papers, the records of the convention, or in
other constitutional source materials concerning the
precise meaning of the “judicial power.” Similarly, there
is virtually no discussion concerning the meaning of this
term in the “Official Record” of the Michigan
constitutional convention of 1961, or in source materials
surrounding Michigan’s earlier constitutions. We attribute
this to the fact that the term was sufficiently well
understood by scholars, lawyers, judges, and even laymen of
the time as not to require further elucidation. No one
would have understood the “judicial power” to constitute an
essentially empty constitutional vessel into which
majorities of the Legislature were free to pour in novel
meanings.

23

concurrence/dissents, is there no more permanent aspect of

the “judicial power” than that it pertain to a “case”?

In fact, the “judicial power” in the Michigan

Constitution, with the several exceptions enumerated above,

is the same “judicial power” as in the federal

constitution,17 and it is the same “judicial power” that has

informed the practice of both federal and state judiciaries

for centuries.18 These historical principles were

recognized by Lee, and we continue to adhere to them

today.19

17
In accord, Daniels v People, 6 Mich 381, 388 (1859);
Sutherland v Governor, 29 Mich 320, 324 (1874); Risser v
Hoyt, 53 Mich 185, 193; 18 NW 611 (1884); Johnson v Kramer
Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586
(1959); House Speaker v State Admin Bd, 441 Mich 547, 554;
495 NW2d 539 (1993), all cited in Lee, supra at 738.
18
One constitutional framer observed, “The third great
division of the powers of government is the judicial
authority. . . . The judicial authority consists in
applying, according to the principles of right and justice,
the constitution and laws to facts and transactions in
cases, in which the manner or principles of this
application are disputed by the parties interested in
them.” James Wilson, 1 Lectures on Law, pp 296-297 (1791).
19
With all due respect, Justice WEAVER, post at 5, is
breathtakingly mistaken in peremptorily describing as a
“judge-made standing test” an element of the “judicial
power” that would have been viewed by the framers of both
the federal and the Michigan constitutions as essential to
the separation of powers, itself perhaps the most essential
pillar of our constitutional structure.

24

 At the same time that the concurring/dissenting

justices extol their own commitment to preservation of the

natural environment, they might well devote equal attention

to the preservation of our constitutional environment. By

their diminishment of a traditional check and balance upon

the exercise of the “judicial power,” the

concurring/dissenting justices would, if their position

were ever to gain a majority, inflict considerable injury

upon our system of separation of powers and the rule of law

that it has produced.

IV. APPLICATION

At a minimum, standing consists of three elements:

First, the plaintiff must have suffered an
“injury in fact”—an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’ Second, there
must be a causal connection between the injury
and the conduct complained of—the injury has to
be “fairly . . . traceable to the challenged
action of the defendant, and not . . . the result
[of] the independent action of some third party
not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.” [Lee, supra at 739, quoting Lujan,
supra at 560-561.]

Plaintiffs seek injunctive relief on behalf of their

members. Nonprofit organizations, such as plaintiffs, have

standing to bring suit in the interest of their members

where such members would have standing as individual

25

plaintiffs. See generally Trout Unlimited, Muskegon White

River Chapter v White Cloud, 195 Mich App 343, 348; 489

NW2d 188 (1992); Karrip v Cannon Twp, 115 Mich App 726,

733; 321 NW2d 690 (1982). Thus, plaintiffs must allege

that their members suffered either an actual injury or an

“imminent” injury. Lee, supra at 739-740, citing Lujan,

supra. The United States Supreme Court in Friends of the

Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528

US 167, 183; 120 S Ct 693; 145 L Ed 2d 610 (2000), found

“environmental plaintiffs adequately allege injury in fact

when they aver that they use the affected area and are

persons ‘for whom the aesthetic and recreational values of

the area will be lessened’ by the challenged activity”

(citation omitted). The Court continued, contrasting the

allegations with those found insufficient in Lujan and Los

Angeles v Lyons, 461 US 95; 103 S Ct 1660; 75 L Ed 2d 675

(1983) (regarding anticipated use of chokeholds by the LAPD):

[W]e see nothing “improbable” about the
proposition that a company’s continuous and
pervasive illegal discharges of pollutants into a
river would cause nearby residents to curtail
their recreational use of that waterway and would
subject them to other economic and aesthetic
harms. The proposition is entirely reasonable,
the District Court found it was true in this
case, and that is enough for injury in fact.
[Friends of the Earth, Inc, supra at 184-185,
(emphasis added).]

26

 Plaintiffs here provided affidavits from three

individuals, members of their organizations who reside near

the mine, who alleged they bird-watched, canoed, bicycled,

hiked, skied, fished, and farmed in the area, they plan to

continue to do so as long as the area remains unspoiled,

and they are “concerned” that the mine expansion will

irreparably harm their recreational and aesthetic enjoyment

of the area. One affiant also alleged that his well, on

property adjacent to the mine, was almost dry and he had to

construct a new, deeper well due to the local aquifer

dropping too low. He alleged this was because of

defendants’ mining activities. These affidavits are nearly

identical to those found adequate in Laidlaw, and we find

they sufficiently meet the test for standing we set forth

in Lee.

However, we note that plaintiffs may not simply rely

on these affidavits throughout the entire proceedings to

prove that standing exists. Subject matter jurisdiction is

a matter that may be raised at any time. MCR 2.116(D)(3).

The United States Supreme Court explained the requirements

in Lujan, supra at 561:

The party invoking federal jurisdiction
bears the burden of establishing these elements
[i.e., injury in fact, causation,
redressibility]. Since they are not mere
pleading requirements but rather an indispensable
part of the plaintiff’s case, each element must

27

 be supported in the same way as any other matter
on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence
required at the successive stages of the
litigation. At the pleading stage, general
factual allegations of injury resulting from the
defendant’s conduct may suffice, for on a motion
to dismiss we “presume that general allegations
embrace those specific facts that are necessary
to support the claim.” In response to a summary
judgment motion, however, the plaintiff can no
longer rest on such “mere allegations,” but must
“set forth” by affidavit or other evidence
“specific facts,” which for purposes of the
summary judgment motion will be taken to be true.
And at the final stage, those facts (if
controverted) must be “supported adequately by
the evidence adduced at trial.” [Citations
omitted.]

Thus, a plaintiff must include in the pleadings

“general factual allegations” that injury will result from

the defendant’s conduct. If the defendant brings a motion

for summary disposition, the plaintiff must further support

the allegations of injury with documentation, just as he

has to support the other allegations that make up his

claim. Finally, when the matter comes to trial, the

plaintiff must sufficiently support his claim, including

allegations of injury, to meet his burden of proof.20

20
It was with regard to these last two steps that
Justices Scalia and Thomas dissented from the majority in
Laidlaw. They would have found that although “[g]eneral
allegations of injury may suffice at the pleading stage, .
. . at summary judgment plaintiffs must set forth ‘specific
facts’ to support their claims.” Friends of the Earth,
Inc, supra at 198.

28

 In this case, the response to defendants’ motion is

met by the affidavit of plaintiff’s expert, Christopher

Grobbel. Included in that document is an explanation of

the expected effect on groundwater flow and recharge rate;

effects on stream flow and water quality; and the expected

effects on birds, fish, and plants resulting from the

planned extensive habitat destruction. Grobbel’s affidavit

serves to provide the necessary factual support for the

individuals’ averred injuries. Plaintiffs will, of course,

be required at trial to meet their burden of proof

regarding the alleged injuries and the alleged effects of

the expansion plans.

Because we hold that plaintiffs have standing without

regard to MCL 324.1701(1), we find it unnecessary to reach

the constitutionality of § 1701(1).

V. Response to Concurrence/Dissents

Justice WEAVER expresses dissatisfaction with the fact

that plaintiffs have been found by the majority to possess

standing to pursue their MEPA claims, but not on the

constitutional grounds that she would prefer. It seems

that it is not enough that plaintiffs prevail, but that

their victory must be predicated, not upon the resolution

of a mere case or controversy, but upon the constitution

itself. The majority concludes that it is unnecessary in

29

this case to resolve a constitutional issue where the case

can be fully resolved on nonconstitutional grounds. Just

as respect for the requirements of standing is an essential

element of the responsible exercise of the "judicial

power," so too is respect for the need to address

constitutional issues only where necessary. Given its very

different views of standing, it is understandable why

Justice WEAVER, unlike this majority, would find the

constitutional question here to be an easy one. However,

notwithstanding the merits of our respective views on

standing, constitutional issues—whether easy or difficult—

are to be avoided where a case can be resolved adequately

on non-constitutional grounds.21

21
As Justice COOLEY has remarked,
While the courts cannot shun the discussion
of constitutional questions when fairly
presented, they will not go out of their way to
find such topics. They will not seek to draw in
such weighty matters collaterally, nor on trivial
occasions. It is both more proper and more
respectful to a coordinate department to discuss
constitutional questions only when that is the
very lis mota. Thus presented and determined,
the decision carries a weight with it to which no
extra-judicial disquisition is entitled. In any
case, therefore, where a constitutional questions
is raised, though it may be legitimately
presented by the record, yet if the record also
presents some other and clear ground upon which
the court may rest its judgment, and thereby
render the constitutional question immaterial to
the case, the court will take that course, and
(continued . . . .)

30

 Several other aspects of Justice WEAVER'S opinion

deserve comment, as does the opinion of Justice KELLY:

(1) Justice WEAVER asserts that, despite Lee, Michigan’s

standing requirement is not constitutional, but rather is

nothing more than “judge-made” law. Post at 4 n 4.22 It is

hard to know what to make of this dismisssive observation.

Justice WEAVER does not explain why Lee constitutes "judge-

(continued . . . .)
leave the question of constitutional power to be
passed upon when a case arises which cannot be
otherwise disposed of, and which consequently
renders a decision upon such question necessary.
[Constitutional Limitations, ch 7, § 2 (1868)
(citations omitted).]

See also Weimer v Bunbury, 30 Mich 201, 218 (1874); People
v Quider, 172 Mich 280, 289; 137 NW 546 (1912); J & J
Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722,
733-734; 664 NW2d 728 (2003). Justice WEAVER characterizes
judicial restraint of the type described by Justice COOLEY,
and honored by judges from time immemorial, as "dodging"
the issue. Post at 30.
22
It is difficult to reconcile Justice WEAVER’S
position that there is no constitutional limitation on what
constitutes the "judicial power" with her concurring
statement in In re Certified Question (Kenneth Henes v
Continental Biomass Industries, Inc), 468 Mich 109, 121;
659 NW2d 597 (2003), in which she asserts that she would
decline to answer a certified question presented in that
case because the court rule pertaining to certified
questions “represents an unconstitutional expansion of
judicial power.” (Emphasis added.) She further observed
in Certified Question that, “it is proper to examine the
common-law understanding of ‘judicial power’ in order to
determine . . . the scope of that power . . . . ‘[J]udicial
power’ is ‘the power to hear and determine controversies
between adverse parties, and questions in litigation.’”
(Citations omitted). On this basis, she then concludes
that the court rule is unconstitutional.

31

made" law any more than any other interpretation of the

constitution, except that she disagrees with Lee. Whatever

"judge-made" law is, Lee does not constitute "judge-made"

law any more than Marbury v Madison, 5 US (1 Cranch) 137; 2

L Ed 60 (1803); McCulloch v Maryland, 17 US 316; 5 L Ed 579

(1819), or Brown v Bd of Ed, 347 US 483; 74 S Ct 686; 98 L

Ed 2d 873 (1954). Some judicial opinions interpreting the

Constitution, of course, may be more persuasive than

others, but all are presumed to articulate the meaning of

the constitution rather than the personal views of a judge.

In Lee, this Court, expounding upon the constitutional

status of standing in Michigan, relied upon federal and

state judicial precedents, as well as historical

understandings, and in the instant opinion, we elaborate

upon this analysis by looking to the meaning of the

"judicial power" under the constitution. While Justice

WEAVER is certainly free to disagree with the majority's

analysis, and while there is room for reasonable debate,

the majority's constitutional holding is no more properly

characterized as "judge-made" law than any other

interpretation of the constitution. What constitutes the

"judicial power," just as what constitutes "equal

protection of the laws," "due process," and "cruel and

unusual punishment," cannot be determined by some

32

mechanical process, but must be given meaning by judges

attempting in good faith to understand the intentions of

those who ratified these provisions. If constitutional

interpretations with which she disagrees are mere "judge-

made" law, how would the Justice WEAVER characterize

interpretations with which she agrees, perhaps even those

interpretations produced by her own pen?

(2) Justice WEAVER asserts that the majority discussion

of standing is, by virtue of Const 1963, art 4, § 52,

“irrelevant to the important questions of Michigan law

presented in this case.” Post at 2 n 1. Art 4, § 52

states, in part, “The legislature shall provide for the

protection of the air, water and other natural resources of

the state from pollution, impairment and destruction.”

Justice WEAVER contends that, pursuant to this provision,

“the people of Michigan have required that the Legislature

provide for the protection of Michigan’s natural resources.

The Legislature properly acted in fulfillment of its

constitutional responsibility through enactment of the MEPA

citizen-suit provision . . .,” and thus any constitutional

standing concerns are irrelevant where MEPA is concerned.

Post at 2.

33

 What Justice WEAVER overlooks, however, is that there

are many requirements that are imposed upon the Legislature

by the constitution. For example:

-- The Legislature "shall implement"
legislation protecting civil rights. Const 1963,
art 1, § 2.

-- The Legislature "shall enact" laws to
preserve the integrity of elections. Const 1963,
art 2, § 4.

-- The Legislature "shall implement" the rules
of initiatives and referendums in Michigan.
Const 1963, art 2, § 9.

-- The Legislature "shall further implement"
rules against conflicts-of-interests by
legislators. Const 1963, art 4, § 10.

-- The Legislature "shall implement" the
provisions of the Headlee Amendment pertaining to
tax limitations. Const 1963, art 9, § 34.23

While undoubtedly making clear what some of the priorities

and obligations of government are, these constitutional

provisions do not state that the Legislature may pursue

these goals, as Justice WEAVER implies, by whatever means.

Rather, it is implicit in these provisions that the

Legislature is to pursue these goals by appropriate means.

23
See also Const 1963, art 2, § 1; art 4, §§ 12, 15,
51, 53; art 5, §§ 10, 12, 14, 15, 17, 18, 20; art 6, § 25;
art 7, §§ 20, 21, 28; art 8, §§ 2, 4, 7, 9; art 9, §§ 1, 3,
5, 21, 35, 35a; art 10, § 5.

34

The Legislature cannot pursue the objects of these "shall

do" provisions by methods that are otherwise

unconstitutional. Does Justice WEAVER think that the

Legislature is empowered under art 4, § 52 to do anything

at all so long as it is done ostensibly with the goal of

protecting the environment? Can it disregard due process

in the criminal prosecution of environmental polluters?

Can it disregard the requirements of just compensation in

taking property in order to construct a wilderness area?

Can it ignore the prohibition against ex post facto laws by

criminalizing conduct that was legal at the time it took

place?

Moreover, can the Legislature, under art 1, § 2

(requiring it to implement civil rights laws), expand the

"judicial power" by enacting laws allowing "any person" to

sue for a civil rights violation committed against "any

other person," even if the actual victim chooses not to

sue? Can the Legislature, under art 9, § 34 (requiring it

to implement tax-limitation provisions), expand the

"judicial power" by authorizing "any person" in Monroe or

Hillsdale to sue to prevent a tax increase in Marquette or

Escanaba? Can the Legislature, under art 2, § 4 (requiring

it to enact election laws), expand the "judicial power" by

authorizing "any person" in Kalamazoo or Battle Creek to

35

sue over ballot disagreements in the Alpena city council

race?

While clearly identifying an important priority of

government, art 4, § 52 does not authorize the Legislature

to ignore all other provisions of the constitution in

enacting laws to protect the environment. At least to

date, the "judicial power" in Michigan has been exercised

only on behalf of plaintiffs who have suffered actual and

particularized injuries.

(3) Justice WEAVER repeatedly asserts that this Court,

in exercising the "judicial power," must act in conformity

with MEPA. Post at 4, 6, 22. In this assertion, she

fundamentally misapprehends the duties of the judicial

branch. As the Michigan Constitution makes clear, the duty

of the judiciary is to exercise the "judicial power," art

6, § 1, and, in so doing, to respect the separation of

powers, art 3, § 2. While as a general proposition, the

proper exercise of the "judicial power" will obligate the

judiciary to give faithful effect to the words of the

Legislature—for it is the latter that exercises the

"legislative power," not the judiciary—such effect cannot

properly be given when to do so would contravene the

constitution itself. Just as the judicial branch owes

deference to the legislative branch when the "legislative

36

power" is being exercised, so too does the legislative

branch owe deference to the judicial branch when the

exercise of the "judicial power" is implicated. Even with

the acquiescence of the legislative and executive branches,

the judicial branch cannot arrogate to itself governmental

authority that is beyond the scope of the "judicial power"

under the constitution. See Marbury v Madison, supra. The

"textual" approach of the concurring/dissenting justice is

a caricatured textualism, in which the Legislature is

empowered to act beyond its authority in conferring powers

upon other branches that are also beyond their authority.24

In the final analysis, the constitutional

responsibility of the judiciary is to act in accordance

with the constitution and its system of separated powers,

by exercising the judicial power and only the judicial

power.25

24
One assumes, for example, that the
concurring/dissenting justice would recognize the
impropriety of the Legislature purporting to confer
authority upon the executive branch to exercise the
"executive power" to condemn property for a "non-public"
use, see Wayne Co v Hathcock, 471 Mich ___; ___ NW2d ___
(2004), or of the Legislature purporting to exercise the
"legislative power" by pardoning criminals.
25
The concurring/dissenting justice's repeated
references to the "people's mandate" (or the "will of the
people") in MEPA, must, of course, be read in connection
with the ultimate "people's mandate," which is that found
(continued . . . .)

37

 (4) Justice WEAVER asserts that the majority’s decision

“overrules 30 years of Michigan case law that held that the

Legislature meant what it said when it allowed ‘any person’

to bring an action in circuit court to protect natural

resources from actual or likely harm.” Post at 3. In

support of this proposition, she cites Eyde v Michigan, 393

Mich 453, 454; 225 NW2d 1 (1975), and Ray v Mason Co Drain

Comm’r, 393 Mich 294, 305; 224 NW2d 883 (1975). However,

neither of these decisions, issued in the aftermath of MEPA’S

passage, offer the slightest support for the

concurrence/dissent's conclusion. Unlike the present case,

neither Eyde nor Ray concerned the issue of standing and

neither involved plaintiffs concerning whom there was any

question of standing. Rather, in Eyde and Ray, this Court

did nothing more than describe, in passing, the substance

(continued . . . .)
in their constitution. There, "we the people" have created
for themselves a government in which, in at least four
separate provisions, they have set forth as clearly as
possible that the boundaries of governmental power are to
be taken seriously. Const 1963, art 3, § 2; art 4, § 1;
art 5, § 1; art 6, § 1.

Further, the concurring/dissenting justice seems
considerably less enthusiastic about deferring to the
"people's mandate" in the context of the Sand Dune Mining
Act, see infra at 52-54; Preserve the Dunes v Department of
Environmental Quality, 471 Mich ____, ___; ____ NW2d ____
(2004), in which the "people," through their Legislature,
have also determined that limited mining should be
permitted near Michigan's sand dunes.

38

of the various provisions of the new act. Such statements

do not even rise to the level of dictum since in neither

Eyde nor Ray did this Court even purport to comment upon

the propriety of the standing provision, much less comment

upon it approvingly. The statements in Eyde and Ray make

no pretense of being statements of law; they are merely

passing, but accurate, descriptions of what was contained

in the new act. Because of what these statements

constituted—mere descriptions of provisions of an act not

then in dispute—it is understandable why neither Eyde nor

Ray set forth any analysis of the meaning of these

provisions, any analysis of their constitutional

implications, any analysis of relevant judicial precedents,

and even any acknowledgment of relevant judicial

precedents. See Smith v Globe Life Ins Co, 460 Mich 446,

461 n 7; 597 NW2d 28 (1999).26 Yet, it is on the basis of

Eyde and Ray that Justice WEAVER identifies "30 years of

Michigan case law" in support of the proposition that

matters of standing do not implicate the Constitution.27

26
It is for these same reasons that we find
unpersuasive the additional cases cited by Justice WEAVER in
support of her assertion that the majority is overruling
“30 years of Michigan case law” concerning standing under
MEPA. Post at 3 n 3.
27
Other references by the concurring/dissenting
justice to Michigan case-law are equally unavailing in
(continued . . . .)

39

 (5) Justice WEAVER accuses the majority of “expand[ing]

the power of the judiciary at the expense of the

Legislature . . . .” Post at 5-6. This accusation turns

reality upon its head. It is akin to saying that President

Washington was expanding his own powers by turning down

congressional invitations to become King. Rather than

expanding its powers, this Court, by questioning the

authority of the Legislature to confer broader powers upon

it, and thereby to expand the "judicial power," is

resisting an expansion of power—not an everyday occurrence

in the annals of modern government.

By ensuring that the "judicial power" not be

improperly expanded by the Legislature, and the "executive

power" not be improperly contracted, this Court is

defending the constitutional structure. In similar

fashion, the United States Supreme Court in Marbury v

Madison, supra, concluded that a congressional grant of

(continued . . . .)
support of this conclusion. In Detroit Fire Fighters As’n
v Detroit, 449 Mich 629, 643; 537 NW2d 436 (1995) (RILEY,
J., concurring), for example, only a single justice of this
Court, in pure dictum, indicated support for the
proposition that that Michigan standing requirements are
based on prudential rather than constitutional concerns.
Post at 10. House Speaker, supra at 554, is similarly
inapt.

40

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 be expanded by mere

statute. As Chief Justice MARSHALL stated, “It is a

proposition too plain to be contested, that the

constitution controls any legislative act repugnant to it."

Id. at 177. The Michigan Constitution grants this Court

the “judicial power”—nothing more and nothing less—and

neither the Legislature nor this Court itself possess the

authority to redefine these limits.28

28
In at least one respect—in her observation that
"judicial activism can be disguised as judicial restraint,"
post at 32—we agree with the concurring/dissenting justice.
Employing the language of judicial restraint, she would
summarily jettison in the name of an (understandably)
popular cause one of the most enduring bulwarks against
judicial activism, the requirement of standing—the
requirement that that courts decide only actual cases and
controversies between real parties with genuinely adverse
interests. By dismantling this historical constraint upon
the courts, she would allow the judicial branch—the least
accountable and least representative branch of government—
to become potentially involved in a sharply expanded range
of public policy disputes. To many Americans of a wide
range of political and jurisprudential views, this would
exacerbate the recent trend in which the constitutional
equilibrium between the judiciary, and the other branches
of government, has become increasingly imbalanced and
distorted in favor of the former.

The majority would restrict the judiciary to its
traditional role of resolving actual cases and
controversies. The concurring/dissenting justice
potentially would allow any person opposed to some aspect
of governmental policy, i.e., most persons, to sue in order
(continued . . . .)

41

 (6) In attempting to understand Justice KELLY'S opinion,

it is important to recognize that she takes great care to

proclaim, post at 2 n 1, that, despite all contrary

appearances, she is not "en toto" overruling Lee. The

effect of this analysis on the part of the concurring

justice is to allow her to enjoy the freedom to discard

traditional principles of standing when it is useful to do

so, as in this case, and then to reassert such principles,

per Lee, when that is equally useful. The concurring

justice's decisionmaking is standardless and inconsistent

with a predictable rule of law.29

(continued . . . .)
to substitute their personal preferences of what
governmental policy ought to be for the policies actually
produced by the representative processes of government.
The concurring/dissenting justice would take advantage of
the relative lack of public understanding of how
traditional standing precepts maintain the constitutional
separation of powers to self-characterize her position as
one of "judicial restraint," notwithstanding her support
for eliminating one of the fundamental underpinnings of
genuine judicial restraint. Almost certainly, if the
concurring/dissenting justice's position on standing were
ever to prevail in Michigan, or nationally, the judicial
branch of government would quickly become a far more
dominant force, and the representative and accountable
branches of government would become far less relevant.
29
Doubtless in the next case—or at least in the next
case in which she is less enthusiastic about "any person"
suing "any person" for anything at all—the concurring
justice will opine that, unlike in the instant case, the
plaintiffs in that case do not have the same "strong
personal manifestations, called 'passive use' or 'standby
value' interests," post at 17, that will ensure the same
(continued . . . .)

42

 (7) Justice KELLY sets forth a torrent of novel

constitutional propositions in her opinion whose principal

purpose apparently is to justify the abandonment of

traditional principles of standing ("to open wide the

courthouse doors")—at least in the realm of environmental

law. The people will have to wait to see whether the

concurring justice is as amenable to the abolition of

standing in other areas of the law. A few of the more

creative propositions of constitutional law that inhabit

her opinion:

-- The "judicial power," although it may
require an individualized injury in order to
bring a federal lawsuit, does not require the
same to bring a state lawsuit. Post at 10-11.
Although Justice KELLY correctly remarks upon the
differing nature of the federal and state
governments, she fails to demonstrate why these
differences have any relevance at all for her
conclusion that the "judicial power" should be
understood differently within these systems.

-- The subject-matter jurisdiction of state
courts is "plenary," and, therefore, the state
"judicial power" is "plenary." Post at 11-12.
That there may be plenary state authority "to
address any social problem that threatens the
public welfare" does not mean that the "judicial
power" encompasses all such authority. Id. at
11.

(continued . . . .)

"sincere and vigorous" advocacy as here. "These interests

ensure that environmental suits are vigorously pursued by

people with a strong personal belief in their claim." Id.

at 17.

43

 -- The "people" only have the power to
"execute" the environmental laws when they are
permitted to sue in court. Post at 5. One might
have thought that it was the executive branch's
responsibility to "execute" the laws, and that
they did so on behalf of the "people."

-- The gist of the separation of powers
principle, rather than to limit the exercise of
governmental power by allocating specific
responsibilities among the three branches of
government, is to ensure that "one individual
may not simultaneously hold office in more than
one branch of government." Post at 8, n 6.
Thereby, the concurring justice would transform
one of the pillars of our system of limited,
constitutional government into the trivial
(albeit probably correct) proposition that a
legislator cannot at the same time serve as
Director of the Department of Community Health.

-- The Michigan Constitution allows the
"judicial power" to be exercised over all
"disputes," and not merely "cases" or
"controversies." Post at 14-15. Aside from the
fact that the concurring justice affords
absolutely no guidance on what constitutes a
"dispute" or how it differs from a "case" or
controversy"—although clearly it does, in her
mind—she invokes no constitutional language, no
constitutional history and no constitutional
precedent for this blithe assertion. Indeed, in
view of the fact that the Constitution apparently
does not address standing at all from her
perspective, why is even so much as a "dispute"
required?

-- An effective substitute for the doctrine
of standing are the doctrines of ripeness and
mootness. Post at 15.

-- The state "judicial power" is different
in kind from the federal "judicial power" because
the latter alone applies to federal questions and
diversity cases. Post at 12. This is simply one
more non sequitur in the concurring opinion in
search of relevance.

44

 -- Federal and state standing requirements
are a function of the methods by which judges are
selected in these systems. Post at 12-13.
"Everything considered, it is not surprising that
the qualifications for standing in state courts
are broader than in federal courts." Id. at 13.
We are aware of nothing in their method of
selection that justifies state judges in
exercising the "judicial power" according to
different rules and constraints than federal
judges.

-- This Court, although it is barred from
viewing standing as an issue of constitutional
dimension, may nonetheless, in the face of a
contrary legislative provision, "constrain its
own power and limit standing . . . ." Post at
19. That is, a court may not countermand the
words of the Legislature on the basis of the
constitution, but it may do so on the basis of
its own discretion as to when words should be
ignored.

-- An institution of government is "ill-
advised to curb its [own] authority under the
guise of respect for another branch of
government." Post at 20. "Ill-advised,"
perhaps, in an era in which governmental
institutions are expected to accrete as much
power as possible; not so "ill-advised" if their
premise is to act within the scope of their
constitutional charter.

-- Separation of powers principles "require"
that the judiciary "respect" the Legislature's
decision. Post at 20. True, although only up to
a point. At least since Marbury v Madison
anyway, the judiciary is also "required" to
"respect" the constitution's decisions.

(8) Justice KELLY argues that the separation of powers

provision of the Michigan Constitution should not be read

in an "overly rigid" fashion. This is essentially a

euphemism for the proposition that this provision should

45

not be read to mean very much of anything at all. It is

hardly an "overly rigid" reading to suggest that, "No

person exercising powers of one branch shall exercise

powers properly belonging to another branch" means that a

judge is limited to exercising the "judicial power," and

not the powers of another branch. This is made explicit in

art 6, § 1.30

Moreover, Justice KELLY'S understanding of the

separation of powers is confused, as reflected in her

citation of the dissenting opinions in Judicial Attorneys

Assoc v Michigan, 459 Mich 291, 307; 586 NW2d 894 (1998);

228 Mich App 386, 427; 579 NW2d 378 (1998), for the

proposition that the "separation of powers doctrine allows

limited overlap and interaction between the branches."

Post at 9. Of course, in pursuit of their distinct

constitutional powers, it will often be the case that the

exercise of separated powers overlaps. For example, it may

be that the Legislature in exercising its legislative power

to enact laws and appropriate monies will sometimes come

into conflict with the Governor in exercising her executive

30
Indeed, the fact that Justice KELLY feels impelled to
articulate her "flexible" understanding of the separation
of powers provision in the first place suggests an
awareness that the imposition upon the judiciary of a duty
to resolve non-cases and non-controversies exceeds the
traditional "judicial power."

46

power to recommend or veto laws and appropriations.

Although the separated powers of the legislative and

executive branches do not overlap, their exercise often

does. The separate and distinct constitutional powers of

two branches may be focused on the same subject areas and

the operations of state government may occasionally involve

a blending of governmental operations as, for example, in

the interaction between the legislative and executive

branches regarding the drafting of a law or the preparation

of a budget. But this is distinct from a blending of

powers or functions. However much cooperation there is

between the branches, the Legislature exercises only the

legislative power and the executive exercises only the

executive power. While the exercise of such separated

powers may often overlap—this being understood generally as

the realm of checks and balances—there is no "sharing" of

the legislative or executive powers. There is only a

sharing of the sum of all state governmental power.

(9) Justice KELLY makes much of the concepts of citizen

suits and private attorneys general, yet fails to note that

the history of such suits indicates that they have been

brought only by individuals who have suffered an injury.

This understanding continues today.

47

 Justice KELLY correctly notes that "citizen suits" have

a long pedigree in English history through relator and

informers’ actions. She fails to explain, however, that

those who brought such actions were not strangers to the

action, but possessed standing themselves either through a

direct injury or through the assignation of the

government’s injury in fact. The historical use of such

actions was explained by the US Supreme Court in Vermont

Agency of Natural Resources v United States, 529 US 765,

774-777; 120 S Ct 1858; 146 L Ed 2d 836 (2000), using the

label “qui tam” actions:

Qui tam actions appear to have originated
around the end of the 13th century, when private
individuals who had suffered injury began
bringing actions in the royal courts on both
their own and the Crown's behalf. See, e.g.,
Prior of Lewes v De Holt (1300), reprinted in 48
Selden Society 198 (1931). Suit in this dual
capacity was a device for getting their private
claims into the respected royal courts, which
generally entertained only matters involving the
Crown's interests. See Milsom, Trespass from
Henry III to Edward III, Part III: More Special
Writs and Conclusions, 74 L Q Rev 561, 585
(1958). Starting in the 14th century, as the
royal courts began to extend jurisdiction to
suits involving wholly private wrongs, the
common-law qui tam action gradually fell into
disuse, although it seems to have remained
technically available for several centuries. See
2 W Hawkins, Pleas of the Crown 369 (8th ed.
1824).

At about the same time, however, Parliament
began enacting statutes that explicitly provided
for qui tam suits [which] allowed injured parties
to sue in vindication of their own interests (as

48

 well as the Crown's), see, e.g., Statute
Providing a Remedy for Him Who Is Wrongfully
Pursued in the Court of Admiralty, 2 Hen. IV, ch.
11 (1400). [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 suffered by the

assignor, which is normally the government. Id. at 773.

In such cases, the Court concluded, the government’s

injury-in-fact suffices to confer standing on the

individual relators bringing the suit. Id. at 774.

Similarly, a review of modern citizen suit cases

almost always includes a review of standing in addition to

a review of the statute that confers the right to such

suits. See, e.g., Gwaltney of Smithfield, Ltd v Chesapeake

Bay Foundation, 484 US 49, 65-66; 108 S Ct 376; 98 L Ed 2d

306 (1987). Further, like citizen suits, suits by private

attorneys general do not involve those completely divorced

from an injury; rather, they involve those who have

suffered an injury—generally “noneconomic” injuries—and who

have been provided an incentive by the legislature to bring

a lawsuit to advance the public interest. See Middlesex Co

Sewerage Authority v Nat’l Sea Clammers Assoc, 453 US 1,

17; 101 S Ct 2615; 69 L Ed 2d 435 (1981). As the United

States Supreme Court noted, the point of the doctrine is

that “directly injured victims can be counted on to

49

vindicate the law as private attorneys general, without any

of the problems attendant upon suits by plaintiffs injured

more remotely”. Holmes v Securities Investor Protection

Corp, 503 US 258, 269-270; 112 S Ct 1311; 117 L Ed 2d 532

(1992) (emphasis added).

Therefore, contrary to Justice KELLY’S assertions, the

use of citizen suits or actions by private attorneys

general does not undermine the application of traditional

standing requirements. If anything, the use of such suits

supports the application of those requirements, as citizen

suits and actions by private attorneys general have always

been grounded in a private injury, whether suffered

directly or as a result of an assignment by another.

(10) Justice WEAVER, referencing this Court’s decision

in Preserve the Dunes v Department of Environmental

Quality, 471 Mich ____; ____ NW2d ____ (2004), derides the

majority for having “unleashed an assault on MEPA this

term.” Post at 33 n 31.31 However, the legal issue

31
Justice KELLY makes a similarly inappropriate, and
irrelevant, connection between these cases in Preserve the
Dunes, supra at 2, asserting that, despite the very
different legal issues involved in these cases, and despite
the fact that we reach no conclusion at all about the
meaning of MEPA in the instant case, that our holdings
"compound" one another. Only, perhaps, in the sense that
the concurring justice's decisions in entirely unrelated
(continued . . . .)

50

addressed in Preserve the Dunes has utterly nothing in

common with the legal issue addressed in this decision, and

to rhetorically equate these decisions merely because they

both implicate an environmental statute suggests less a

legal analysis on the part of the concurring/dissenting

justice than a political statement. It is this Court's

responsibility simply to uphold the law and the

constitution, not to promote or impede any particular

legislative cause or interest, however popular or

unpopular. Rather, the obligation of this Court is simply

to say what the law is. And that is exactly what the

justices in the majority have sought to do in this case, as

they have each sought to do—however imperfectly—in every

case coming before this Court.

The majority cannot read the concurring/dissenting

justice's conflation of wholly unrelated legal issues in a

single derisive volley as anything other than implying that

this Court has some obligation to decide environmental

issues with an eye toward their results.32 However, that

(continued . . . .)

criminal cases, involving entirely different legal issues,

"compound" one another.

32
In the interest of perspective, we note once more
that the majority has found that the plaintiffs in this
case—environmental plaintiffs—possess standing to pursue
their cause of action. They have prevailed. In
(continued . . . .)

51

the issue of standing has arisen here in the context of MEPA

is, from the perspective of the majority, utterly

irrelevant. The majority would be addressing this critical

constitutional issue in identical terms if it had arisen in

any other subject area of the law, and it would be no more

of an "assault upon MEPA" than the present decision is an

"assault upon MEPA."

Further, in the other case referenced, Preserve the

Dunes, in which this same majority has also allegedly

"assaulted MEPA," this Court addressed the following

specific legal question—whether MEPA authorizes a collateral

action to challenge the Department of Environmental

Quality's decision to issue a permit under the Sand Dune

Mining Act, MCL 324.63701, enacted by the Legislature,

where that collateral action seeks to challenge flaws in

the permitting process unrelated to whether the conduct

involved has polluted, or will likely pollute natural

resources. We can only invite the reader of the instant

opinion to also read Preserve the Dunes to determine

whether that opinion represents an "assault on MEPA," or

(continued . . . .)
identifying such standing, however, the majority has found
it to exist under traditional precepts of standing and has
avoided the resolution of a constitutional issue that it
need not prematurely address. See n 21.

52

instead an honest and impartial effort to resolve the

limited question of statutory interpretation presented in

that case.

Justice WEAVER'S "assault on MEPA" rhetoric becomes even

more groundless when one recognizes that she is

dissatisfied with the majority for having concluded that it

is unnecessary to interpret MEPA at all in resolving the

present standing controversy. Instead, we conclude that

plaintiffs possess standing on traditional grounds. Thus,

in the end, the majority's "assault upon MEPA" amounts
33
merely to the majority refraining from interpreting MEPA.

VII. CONCLUSION

In addressing an issue that the majority does not

resolve today, Justices WEAVER and KELLY would allow the

Legislature to grant plaintiffs standing in environmental

lawsuits, regardless of whether any injury has been

suffered. Under this view of the "judicial power," "any

person," for example, could seek to enjoin "any person"

from mowing his lawn with a gas-powered mower because such

activity allegedly creates air pollution and uses fossil

33
Despite characterizing the majority's discussion on
standing in section III as "simply dicta," post at 3, a
point with which we agree, Justice Kelly simultaneously,
and perplexingly, concludes that this case "stands for the
proposition" addressed in this section. Id. at 2.

53

fuels when other alternatives are available. "Any person"

could sue "any person" for using too much fertilizer on his

property, or allowing too much runoff from a feedlot on his

property. "Any person" could sue "any person" from using

excessive amounts of pesticides in his home or garden or

farm. "Any person" could sue "any person" for improperly

disposing of used petroleum-based oils. "Any person" could

sue "any person" for improper backyard grilling practices,

excessive use of aerosol sprays and propellants, or

wasteful lawn watering.34

We can only assume that the concurring/dissenting

justices' casualness about eliminating traditional rules of

standing suggests that they are not fully aware of the

world that they would create. It is a world in which any

conduct allegedly affecting the environment might result in

litigation if anyone, anywhere, for any reason, felt

aggrieved. The potential for abuse under such a

34
In response to Justice WEAVER's assertion that,
"[a]fter more than 30 years, MEPA has not spawned an
unmanageable stream of citizen-suits . . .," post at 28. n
30, the majority simply reiterates that there has never
been a decision of this Court holding under MEPA that "any
person" could sue "any person." In response to Justice
KELLY, the majority simply notes that it is underwhelmed by
the purported safeguards that she identifies to what she
characterizes as our "parade of horribles." Id. at 20. It
is fortunate for the people of Michigan that, at least for
the time being, their freedoms and fortunes will not be
dependent upon such "safeguards."

54

circumstance explains at least one of the practical reasons

why the enforcement of regulatory laws has generally been

limited to officers of the executive branch, and why, from

time immemorial, standing has required an individualized

injury on the part of a plaintiff. The

concurring/dissenting justices would replace the judgment

and discretion of the executive branch with an enhanced

regime of lawsuits, a regime in which judges increasingly

substitute their own views for those of the Governor, the

Attorney General, and their appointees.

This Court reaffirms Lee and concludes that, under the

circumstances of this case, plaintiffs, on behalf of their

members, possess standing to pursue the instant cause of

action. Thus, we affirm the decision of the Court of

Appeals and remand to the trial court for proceedings

consistent with this opinion.

Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.

55

 S T A T E O F M I C H I G A N

SUPREME COURT

NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA ENVIRONMENTAL
COUNCIL,

Plaintiffs-Appellees,

v No. 121890

CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP,

Defendants-Appellants,

and

MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSELL J. HARDING, Director
of the Michigan Department of
Environmental Quality,

Defendant-Appellee

_______________________________

WEAVER, J. (concurring in result only).

I concur in only the result of the majority opinion.

I would hold that plaintiffs have standing under MCL

324.1701(1) of the Michigan environmental protection act

(MEPA) to bring an action to enjoin mining activities that

plaintiffs allege will irreparably harm natural resources.

I dissent from the majority’s analysis of “standing”

and “judicial power” because this analysis utterly ignores
the will of the people of Michigan expressed in art 4, § 52

of our Constitution that

[t]he conservation and development of the natural
resources of the state are hereby declared to be
of paramount public concern in the interest of
the health, safety and general welfare of the
people. The legislature shall provide for the
protection of the air, water and other natural
resources of the state from pollution, impairment
and destruction.[1]

Pursuant to this constitutional provision, the people

of Michigan have required that the Legislature provide for

the protection of Michigan’s natural resources. The

Legislature properly acted in fulfillment of its

constitutional responsibility2 through enactment of MEPA’s

citizen-suit provision that provides:

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

1
The majority ignores the constitutional mandate of
art 4, § 52 and attempts to distract the reader with a
discussion of federal standing and federal judicial power,
a discussion that is irrelevant to the important questions
of Michigan law presented in this case.
2
As previously recognized by this Court, “Michigan’s
Environmental Protection Act marks the Legislature’s
response to our constitutional commitment to the
‘conservation and development of the natural resources of
the state.’” Ray v Mason Co Drain Comm’r, 393 Mich 294,
304; 224 NW2d 883 (1975) (quoting Const 1963, art 4, § 52).

2

 from pollution, impairment, or destruction. [MCL
324.1701(1)(emphasis added).]

The majority disregards the intent of the Legislature,

erodes the people’s constitutional mandate, and overrules

30 years of Michigan case law that held that the

Legislature meant what it said when it allowed “any person”

to bring an action in circuit court to protect natural

resources from actual or likely harm.3

In this case, this Court specifically asked the

question whether the Legislature may confer standing under

MCL 324.1701(1) of MEPA on persons who do not satisfy the

judicial test for standing articulated by Lee v Macomb Co

Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). The

majority purports to not decide this question, but it

clearly implies that the Legislature’s attempt to confer

3
Five years after MEPA was enacted, this Court said
that MEPA “provides private individuals and other legal
entities with standing to maintain actions in the circuit
court” to protect natural resources. Ray, supra at 304-
305. That MEPA grants standing to “any person” has been
unquestioned for over 30 years. See also, Eyde v State of
Michigan, 393 Mich 453, 454; 225 NW2d 1 (1975), West
Michigan Environmental Action Council v Natural Resources
Comm, 405 Mich 741; 275 NW2d 538 (1979), Kimberly Hills
Neighborhood Ass’n v Dion, 114 Mich App 495; 320 NW2d
(1982), Trout Unlimited Muskegon White River Chapter v
White Cloud, 195 Mich App 343; 489 NW2d 188 (1992), Nemeth
v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641 (1998).

3

standing more broadly than Lee in MEPA or any other statute

is unconstitutional.

Fortunately for the plaintiffs in this case the

majority concludes that the plaintiffs have standing under

the judge-made test articulated in Lee.4 In so holding, the

majority purports to exercise judicial restraint, asserting

that it is preserving the “separation of powers” by not

exercising the ”power” conferred upon it by the Legislature

under MEPA and applying Lee’s restrictive standing test to

these MEPA plaintiffs. This assertion is untrue because

MEPA empowered the people to help protect the state’s

4
The majority cannot seriously dispute, ante at 25 n
19 and 32-33, that Lee is a “judge-made” standing test.
Lee “supplemented” Michigan’s previously prudential
standing test with a test derived from federal law
interpreting a federal constitutional provision that does
not apply to the state. Neither the framers nor the
ratifiers of the 1963 Constitution, when considering the
power of the Michigan judiciary, would have anticipated
supplementing Michigan’s prudential standing doctrine with
the constraints imported by Lee from art III of the federal
constitution. As defined in 1 Cooley, Constitutional
Limitations (8th ed) at 125, n 1:
“Judge-made law”, as the phrase is here
employed, is that made by judicial decision which
construe away the meanings of statutes, or find
meanings in them the legislature never held. The
phrase is sometimes used as meaning, simply, the
law that becomes established by precedent.

Judges can as easily and with as little restraint find
new meanings in constitutions that the ratifiers never
intended as they can find new meanings in statutes. This
is precisely the effect of the majority’s decision in Lee.

4

natural resources, not the courts, and because the majority

has in fact laid out its position on the constitutional

question. Though camouflaged by the correct result, it is

clear that the majority would hold that the Legislature may

not grant standing more broadly than Lee. The majority can

wait for a future case that has not drawn public attention5

to openly and directly declare the MEPA citizen-suit

standing provision unconstitutional.

The majority’s application of Lee’s judicial standing

test to these plaintiffs imposes unprecedented, judge-made

restrictions on MEPA plaintiffs’ access to the courts. The

majority’s decision overrules without discussion 30 years

of precedent, imposes on all future MEPA plaintiffs the

burden of establishing standing under the restrictive test

of Lee, and undermines the people’s mandate expressed by

5
This case has generated considerable and justifiable
concern regarding whether this Court would uphold the
Legislature’s grant of standing that authorizes “any
person,” MCL 324.1701(1), to sue to protect the environment
or whether the Court would declare such legislatively
conferred standing unconstitutional by extending the
rationale of Lee. Note that the State Attorney General’s
office on behalf of the Michigan Department of
Environmental Quality, appellee before this Court, argues
that the Michigan Legislature may grant standing to persons
who do not meet the Lee standing test. Included among the
many amicus opposing the extension of Lee is William G.
Milliken, the Governor of Michigan who signed MEPA into
law. Apparently, the executive branch has not and does not
share the majority’s fear of MEPA citizen-suits.

5

Const 1963, art 4, § 52 that the Legislature provide for

the protection of Michigan’s natural resources. While

pretending to limit its “judicial power,” the majority’s

application of Lee’s judicial standing test in this case

actually expands the power of the judiciary at the expense

of the Legislature by undermining the Legislature’s

constitutional authority to enact laws that protect natural

resources.

The majority’s failure to adhere to MEPA’s “any

person” standard will have far-reaching consequences and

will affect plaintiffs’ access to courts in more than just

the environmental arena. For example, while resolving the

case on other grounds, the Court of Appeals in Cuson v

Tallmadge Charter Twp, unpublished opinion per curiam,

issued May 15, 2003 (Docket No. 234157), applied Lee to

note that plaintiffs did not have standing under Lee to

enjoin future violations of the Open Meetings Act, MCL

15.261 et seq. The panel did not address § 11(1) of that

Open Meetings Act, which provides:

If a public body is not complying with this
act, the attorney general, prosecuting attorney
in which the public body serves, or a person may
commence a civil action to compel compliance or

6

 to enjoin further noncompliance with this act.
[Emphasis added.][6]

Thus, it cannot be denied that this case concerns more than

the people’s constitutional mandate that the Legislature

protect the environment and the Legislature’s attempt

through MEPA’s citizen-suit provision to do so. It also

concerns every statutory grant of standing that is broader

than Lee’s standing test.7

Consequently, while I concur with the majority’s

conclusion that the plaintiffs have standing to bring this

action, I dissent from the majority’s imposition of Lee’s

judicial standing test in this case. Further, I disagree

with the majority’s inappropriate suggestion, in its

reliance on inapplicable federal law, that the plaintiffs’

victory may be short-lived. Ante at 28 and 29 n 20. On

6
Also see People v Van Turbbergen, 249 Mich App 354;
642 NW2d 368 (2002) the prosecution raised Lee to suggest
that a criminal defendant did not have standing to
challenge his arrest as being without legal authority and
Otsego Co Rural Alliance, Inc v Bagley Twp, unpublished
opinion per curiam of the Court of Appeals, issued June 19,
2003 (Docket No. 237277), in which the Court held that
plaintiffs did not have standing under Lee to challenge the
defendant’s establishment of a Downtown Development
Authority or a referendum by which the voters approved a
contract between defendant and a utilities authority
established by defendant and another township.
7
See ante at 43.

7

remand, the parties’ burdens of proof are well-established

under MEPA.

I would conclude that the Michigan Legislature has the

constitutional authority to create a cause of action and to

confer standing on any person without this Supreme Court’s

interference through judge-made standing tests. I would

further conclude that the Legislature did expressly confer

standing on “any person” under MCL 324.1701(1). Therefore,

I would hold that plaintiffs have standing pursuant to MCL

324.1701(1) of MEPA.

I. FACTS

In this case plaintiffs, the National Wildlife

Federation and the Upper Peninsula Environmental Coalition,

seek to enjoin defendants, Cleveland Cliffs Iron Company

and Empire Iron Mining Partnership, from proceeding under a

permit issued in August 2000 by the Department of

Environmental Quality. Plaintiffs allege that the expansion

of iron ore mining activities proposed under the permit

will irreparably harm wetlands and streams.

II. MEPA

The people of Michigan through the 1963 Constitution

expressly directed the Legislature to provide for the

protection of the environment. The Constitution provides:

8

 The conservation and development of the
natural resources of the state are hereby
declared to be of paramount public concern in the
interest of the health, safety and general
welfare of the people. The legislature shall
provide for the protection of the air, water and
other natural resources of the state from
pollution, impairment and destruction. [1963
Const 1963, art 4, § 52.]

As part of its fulfillment of this mandatory

constitutional duty, the Legislature enacted the Michigan

environmental protection act (MEPA). State Hwy Comm v

Vanderkloot, 392 Mich 159, 183; 220 NW2d 416 (1974).8

Having determined that “[n]ot every public agency

proved to be diligent and dedicated defenders of the

environment,” the Legislature through MEPA “has provided a

sizable share of the initiative for environmental law

enforcement for that segment of society most directly

affected——the public.” Ray, supra at 305, and Eyde, supra.

As this Court previously noted, this citizen-suit provision

of MEPA “signals a dramatic change from the practice where

the important task of environmental law enforcement was

left to administrative agencies without the opportunity for

8
MEPA is codified as part 17 of the natural resources
and environment act, MCL 324.101 et seq.

9

participation of individuals or groups of citizens.” Ray,

supra at 305.

MEPA broadly defines who can sue to protect the

environment by providing:

The attorney general or any person[9] 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. [MCL
324.1701(1)(emphasis added).]

This Court has explained that MEPA creates “an independent

cause of action, granting standing to private individuals

to maintain actions in circuit court for declaratory and

other equitable relief against anyone for the protection of

Michigan’s environment.” Eyde, supra at 454. Indeed, this

Court has held that this language confers standing on “any

person.” Ray, supra 304-305.

9
The definition of “person” in the Natural Resources
and Environmental Protection Act, of which MEPA is a part
applies throughout the act. MCL 324.301(g) of the act
defines “person” as “an individual, partnership,
corporation, association, governmental entity, or other
legal entity.”

10

 III. Michigan’s Judicial Standing Test

Without standing, a court will not hear a person’s

complaint — the doors to the court are closed. Unlike

other substantive rules governing access to the courts,

standing rules focus on the person bringing the claim

rather than the claim itself.10 “Whether a party has a

sufficient stake in an otherwise justiciable controversy to

obtain judicial resolution of that controversy is what has

traditionally been referred to as the question of standing

to sue.” Sierra Club v Morton, 405 US 727, 731-732; 925 S

Ct 1361; 31 L Ed 2d 636 (1972).

In Michigan, the judicial test for standing has

focused on prudential, as opposed to constitutional,

concerns. Lee, supra at 743 (WEAVER, J. concurring); Detroit

Fire Fighters Ass’n v Detroit, 449 Mich 629, 643; 537 NW2d

436 (1995) (RILEY, J. concurring).11 Prudential concerns are

10
In Flast v Cohen, 392 US 83, 102; 88 S Ct 1942; 20 L
Ed 2d 947 (1968), the Court noted “in ruling on standing,
it is both appropriate and necessary to look to the
substantive issues . . . to determine whether there is a
logical nexus between the status asserted and the claim
sought to be adjudicated.”
11
No Michigan case decided before Lee held that
standing to sue in Michigan courts is a Michigan or federal
constitutional question as opposed to a prudential concern.
Thus the majority’s allegiance to Lee is not allegiance to
“traditional grounds” for standing. See ante at 53.

11

essentially “matters of judicial self-governance. . . .”

Warth v Seldin, 422 US 490, 500; 95 S Ct 2197; 45 L Ed 2d

343 (1975). Before Michigan courts will hear a case, they

consider whether “a party’s interest in the outcome of the

litigation . . . will ensure sincere and vigorous

advocacy.” House Speaker v State Admin Bd, 441 Mich 547,

554; 495 NW 2d 539 (1993). The courts further consider

whether the plaintiff has demonstrated that “the

plaintiff’s substantial interest will be detrimentally

affected in a manner distinct from the citizenry at large.”

Id.

In developing prudential standing rules, Michigan

courts have often drawn from federal case law discussing

prudential standing requirements. Id. at 559. Yet the

federal courts are bound not only by judicially imposed

prudential considerations, but also by federal

constitutional limitations on standing imposed by article

III of the federal constitution.12 Warth, supra at 498.

12
The first mention of standing as an article III
limitation was in Stark v Wickard, 321 US 288; 64 SCt 559;
88 L Ed 733 (1944). See Sunstein, What’s Standing After
Lujan? Of Citizens Suits, “Injuries,” and Article III, 91
Mich L R 163, 169 (1992). The majority’s assertion that
the founding fathers had the specific concept of standing
in mind when enumerating the powers of the federal
judiciary through article III is pure speculation.

12

Federal constitutional standing limitations involve

“whether the plaintiff has made out a ‘case or controversy’

between himself and the defendant within the meaning of

article III of the United States Constitution.” Id. at

498.13

The United States Supreme Court has made clear that

article III-based constraints apply to every person who

seeks to invoke federal court jurisdiction. Bennett v

Spear, 520 US 154, 162; 117 S Ct 1154; 137 L Ed 2d 281

(1997). However, the United States Supreme Court has also

made clear that article III-based constraints are

distinguishable from federal prudential constraints,

because prudential constraints can be “modified or

13
Art III, § 2 provides in part:
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under
their authority;—to all cases affecting
Ambassadors, other public Ministers and Consuls;—
to all Cases of admiralty and maritime
Jurisdiction;—to Controversies to which the
United States shall be a Party;-to Controversies
between two or more States;—between a State and
Citizens of another State;—between Citizens of
different States,—between Citizens of the same
State claiming Lands under Grants of different
States, and between a State, or the Citizens
thereof, and foreign States, Citizens or
Subjects.

13

abrogated by Congress . . . .” Id.14 Before Lujan, supra,

the United States Supreme Court described the difference

between federal constitutional and federal prudential

constraints on standing in Sierra Club, supra at 732:

Where the party does not rely on any
specific statute authorizing invocation of the
judicial process, the question of standing
depends upon whether the party has alleged such a
“personal stake in the outcome of the
controversy,” Baker v. Carr, 369 US 186, 204 [825
S Ct 691; 7 L Ed 2d 663 (1962)], as to ensure
that “the dispute sought to be adjudicated will
be presented in an adversary context and in a
form historically viewed as capable of judicial
resolution.” Flast v Cohen, 392 US 83, 101.
Where, however, Congress has authorized public
officials to perform certain functions according
to law, and has provided by statute for judicial
review of those actions under certain
circumstances, the inquiry as to standing must
begin with a determination of whether the statute
in question authorizes review at the behest of
the plaintiff.

There has never been a federal case applying article

III’s case or controversy based standing constraints to

state courts. As noted by Justice Kennedy writing for the

14
Addressing the legislative standing vis-a-vis
federal prudential standing constraints, Justice Scalia
writing for the majority in Bennett, supra at 165, held
that the grant of standing to “any person” under the
Endangered Species Act, 16 USC 1540(g) must be taken at
“face value” because “the overall subject matter of this
legislation is the environment (a matter in which it is
common to think that all persons have an interest) and that
the obvious purpose of the provision is to encourage
enforcement by so-called ‘private attorneys
general’. . . .”

14

Court in ASARCO, Inc v Kadish, 490 US 605, 617; 109 S Ct

2037, 104 L Ed 2d 696 (1989):

We have recognized often that the
constraints of Article III do not apply to state
courts, and accordingly the state courts are not
bound by the limitations of a case or controversy
or other federal rules of justicibility . . . .

Nevertheless, because the majority incorrectly and at

length insists that article III’s case or controversy

constraints do apply to Michigan, it is necessary to review

those constraints.

For the purposes of this case, the relevant

articulation of federal article III-based standing test is

found in Lujan v Defenders of Wildlife, 504 US 555; 112 S

Ct 2130; 119 L Ed 2d 351 (1992).15 In Lujan, supra at 560,

the lead opinion of the United States Supreme Court

concluded that the “irreducible constitutional minimum” for

standing within the meaning of Article III’s “case or

controversy” limitation is as follows:

First, the plaintiff must have suffered an
“injury in fact” — an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’” Second, there
must be a causal connection between the injury
and the conduct complained of — the injury has to

15
This articulation is relevant because, as will be
discussed infra, the majority in Lee “supplemented”
Michigan’s standing test with Lujan’s article III-based
test.

15

 be “fairly . . . trace[able] to the challenged
action of the defendant, and not . . . the result
[of] the independent action of some third party
not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,”
that the injury will be “redressed by a favorable
decision.” [Citations omitted.]

In Lujan, six United States Supreme Court justices

agreed that the plaintiffs had failed to demonstrate a

concrete injury resulting from a lack of opportunity to

consult regarding the impact of certain federally funded

overseas activities on its members ability to observe

endangered species on unspecified future trips abroad.16

16
The Lujan lead opinion was authored by Justice
Scalia and joined in whole by Chief Justice Rehnquist and
Justices White and Thomas. Justice Kennedy, joined by
Justice Souter, concurred separately, agreeing that
respondents failed to demonstrate a concrete injury.
Justice Kennedy in his concurrence did not join the part of
the opinion that articulated the three element
“irreducible” test, but rather based his concurrence on
respondents failure to demonstrate a concrete injury that
would be sufficient “under our precedents.” Lujan, supra
at 580. The Lujan standing test has been applied, however,
in subsequent decisions of the United States Supreme Court.
See e.g. Bennett, supra and Friends of the Earth, Inc v
Laidlaw Environmental Services (TOC), Inc, 528 US 167; 120
S Ct 693; 145 L Ed 2d 610 (2000). Over the dissent of
Justices Scalia and Thomas, the United States Supreme Court
in Laidlaw tempered its application of the Lujan concrete
injury requirement holding that a plaintiff’s “reasonable
concerns” that a defendant’s conduct would affect their
recreational, aesthetic, and economic interest was
sufficient. Though Laidlaw preceded this Court’s decision
in Lee, it was not mentioned by the Lee majority. However,
it should be noted that the majority now cites with
approval the Laidlaw dissent of Justice Scalia. Ante at
29, n 20.

16

The Lujan lead opinion, with the qualified support of the

concurrence, noted that “[w]e have consistently held that a

plaintiff raising only a generally available grievance

about government — claiming only harm to his and every

citizen’s interest in the proper application of the

Constitution and laws, and seeking relief that no more

directly and tangibly benefits him than it does the public

at large — does not state an article III case or

controversy.” Id. at 573-574.17

Until the decision in Lee, it was well-understood by

this Court that article III’s “case or controversy”

limitation was inapplicable to Michigan courts.18 Until

Lee, no decision of this Court characterized standing in

Michigan courts as being a constitutional question.

Nonetheless, the Lee majority adopted Lujan’s article III-

based test, concluding vaguely that Lujan’s test was

“fundamental to standing.” Lee, supra at 740. The Lee

17
Justices Kennedy’s concurrence with this portion of
the lead opinion was qualified by his view that “Congress
has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy
where none existed before.” Lujan, supra at 580.
18
ASARCO, Inc, supra at 617 and House Speaker, supra
at 559 n 20. See also Lee, supra at 743 (WEAVER, J.
concurring); Detroit Fire Fighters, supra at 643(RILEY, J.
concurring) .

17

majority warned that to neglect standing “would imperil the

constitutional architecture whereby governmental powers are

divided between the three branches of government.” Lee,

supra at 735.

Obscuring the fact that Michigan’s Constitution

contains no corollary to article III, §2, the Lee majority

suggested that Michigan’s standing doctrine developed on a

parallel track by way of “additional constitutional

underpinning.” Lee, supra at 737 (emphasis added). The

“additional constitutional underpinning” referenced by the

Lee majority was Const 1963, art 6, § 1, which vests the

state judicial power in the courts,19 and Const 1963, art 3,

§ 2, which divides the powers of government into three

branches.20 However, the cases addressing these provisions

cited by the Lee majority were not standing cases; rather

each involved a distinct question regarding the scope of

19
Const 1963, art 6, § 1 provides: “The judicial
power of the state is vested exclusively in one court of
justice which shall be divided into one supreme court, one
court of appeals, one trial court of general jurisdiction
known as the circuit court, one probate court, and courts
of limited jurisdiction that the legislature may establish
by a two-thirds vote of the members elected to and serving
in each house.”
20
Const 1963, art 3, § 2 provides: “The powers of
government are divided into three branches; legislative,
executive and judicial. No person exercising powers of one
branch shall exercise powers properly belonging to another
branch except as expressly provided in this constitution.”

18

judicial power.21 In other words, the Lee majority

incorrectly equated Michigan case law addressing unrelated

issues of “judicial power” with federal case law addressing

article III’s “case or controversy” constraints on

standing.22

The Lee majority’s analysis, and its adoption of

Lujan’s article III-based standing test, laid the

groundwork to question the Legislature’s authority to

confer standing on plaintiffs who would not survive Lee’s

test. I continue to believe that the adoption of the Lujan

test for standing by the Lee majority was unnecessary.

Lee, supra at 744 (WEAVER, J. concurring). Further, the

majority’s application of Lee’s standing test to a case

involving a constitutionally based, expressly legislated

21
The Lee majority cited Sutherland v Governor, 29
Mich 320 (1874) which held that the courts cannot issue a
mandamus against the Governor; Daniels v People, 6 Mich 381
(1859), which held the authority to set a criminal
defendant’s bail was a ministerial, not a judicial act;
Risser v Hoyt, 53 Mich 185; 18 NW 611 (1884), which held
the Legislature cannot delegate judicial power to circuit
judges acting in chambers as opposed to in court; Johnson v
Kramer Bros Freight Lines, Inc, 357 Mich 254; 98 NW2d 586
(1959), which held the Legislature may delegate to the
judiciary the power to determine whether good cause
justified a writ of garnishment.
22
Even the author of Lujan’s lead opinion, Justice
Scalia, recognized a distinction between article III-based
standing limitations and the “merely prudential
considerations that are part of judicial self-government .
. . .” Lujan, supra at 560.

19

grant of standing demonstrates that the adoption of Lujan

is not only unnecessary, it is wrong for Michigan.

Michigan’s case law addressing distinguishable issues

involving the scope of judicial power before Lee already

protected the balance of powers among Michigan’s three

branches of government.23

It is simply not true that a judge-made standing test

based on a federal constitutional provision that has no

corollary in Michigan would, as promised by the Lee

majority, better preserve Michigan’s “constitutional

architecture.” Lee, supra at 735. Certainly, the

majority’s distracting diversion into contemplations of

federal law does nothing to clarify or justify its

abandonment of thirty years of precedent under MEPA.

Nevertheless, it is clear that Lee has, and the majority in

this case has, constitutionalized Michigan’s judicial

standing test. In so doing, the majority usurps the

Legislature’s authority to modify or abrogate the

judiciary’s prudential standing constraints. It is, thus,

the majority’s application of Lee’s article III-based test

to this and future MEPA cases that will disrupt Michigan’s

23
See, e.g., Sutherland, supra; Daniels, supra;
Risser, supra; Johnson, supra.

20

“constitutional architecture” and the legislatively

conferred access to the courts.

IV. Preserving Michigan’s Constitutional Structure

Among the reasons why Lee’s article III-based standing

test or any judge-created standing test should not be

applied to MEPA plaintiffs, the most important is that to

do so defeats the clear, unambiguous, and readily

understandable purpose of art 4, § 52 of the Michigan

Constitution.24 Through art 4, § 52, the people of Michigan

directed the Legislature “to provide for the protection of

the air, water and other natural resources of the state

from pollution, impairment and destruction.” Art 4, § 52

provides that this mandate serves the people’s express

“paramount concern in the interest of the health, safety

and general welfare of the people” specifically with

respect to “the “conservation and development of the

natural resources of the state.” Employing the precise

words of art 4, § 52, the Legislature enacted MEPA in

fulfillment of art 4, § 52’s mandate.

Since MEPA’s enactment, this Court has held that the

Michigan Legislature could confer standing under MEPA to

24
See, e.g., Mich Farm Bureau v Secretary of State,
379 Mich 387, 393; 151 NW2d 797 (1967) (addressing
principles of constitutional construction.)

21

“any person” who alleges that a defendant’s conduct has or

is likely to “pollute, impair or destroy the air, water or

other natural resources or the public trust therein.” Ray,

supra. MEPA plaintiffs have not been required, until now,

to overcome any judge-created standing tests to gain access

to the courts.25 It is clear that the Legislature’s

explicit grant of standing to ”any person” under MEPA was

intended to operate free from judge-made standing tests.

Expanding the application of Lee, therefore, undermines art

4, § 52 and the Legislature’s policy decisions, by

restricting who may bring a MEPA action to court.

Expanding the application of Lee’s standing test, as

the majority does in this case, also infringes the

Legislature’s power to make laws pursuant to art 4, § 52.26

25
MEPA requires plaintiffs to show “that the conduct
of defendant has polluted, impaired, or destroyed or is
likely to pollute, impair, or destroy the air, water, or
other natural resources . . . .” MCL 324.1703(1). The
defendant may rebut a plaintiff’s case by submitting
evidence to the contrary or by way of an affirmative
defense show “that there is no feasible and prudent
alternative to defendant’s conduct and that his or her
conduct is consistent with the promotion of the public
health, safety, and welfare in light of the state’s
paramount concern for the protection of its natural
resources from pollution, impairment, or destruction.” Id.
26
This present case is distinguishable from Lee
because the statute at issue in Lee did not involve a
legislated and express cause of action coupled with an
unambiguous grant of standing. Lee addressed plaintiff’s
(continued . . . .)

22

The Legislature’s decision to allow “any person” to

maintain a cause of action under MEPA is consistent with

art 4, § 52’s environmental mandate and is an exercise of

legislative discretion that carries a presumption of

constitutionality. Johnson v Kramer Bros Freight Lines,

Inc, supra at 257. As duly recognized by Justice COOLEY: “no

court can compel the Legislature to make or to refrain from

making laws, or to meet or adjourn at its command, or to

take any action whatsoever, though the duty today it be

made ever so clear by the constitution or the laws.”

Sutherland, supra at 326.

Through MEPA, the Legislature has given “the private

citizen a sizable share of the initiative for environmental

law enforcement.” Eyde, supra at 454. Yet it is strongly

implied by the majority that MEPA’s citizen-suit provision

unconstitutionally transfers to the judiciary the executive

power to ensure that the laws are faithfully executed.

This argument is unsupportable and incorrect. MEPA’s

citizen suit provision does not expand the power of the

judiciary; it grants the power to the people of this state

to pursue MEPA violations. The court’s role in these cases

(continued . . . .)

standing to compel county boards of commissioners to levy a

tax establishing a veteran’s relief fund in accordance with

the soldier’s relief act, MCL 35.21 et seq.

23

differs in no way from any other controversy that comes

before it: the court hears the case, interprets the

applicable law, and renders a decision.27

Moreover, the Legislature’s decision to permit “any

person” to sue under MEPA does not interfere with the

enforcement of the law by the executive branch, it simply

provides every citizen an opportunity to ensure that the

laws that are designed to prevent environmental harm are

enforced. In this sense, MEPA’s citizen-suit provision is

consistent with the fact that, “[a]ll political power is

inherent in the people. Government is instituted for their

equal benefit, security and protection.” Art 1, § 1.

Further, the majority’s application of Lee’s standing

test ignores the fact that the three branches of government

cannot “operate in all respects independently of the

27
Similarly, the majority is mistaken that art 3, § 8,
art 9, § 32, or art 11, § 5 grant “judicial power.” Ante
at 20-21. Art 3, § 8 grants power to the Legislature and
the Governor to request an advisory opinion on the
constitutionality of legislation. Art 9, § 32 grants any
taxpayer the ability to pursue violations of the Headlee
Amendment, though this majority has recently eviscerated
that broad grant of standing by applying broad judicially
created principles of res judicata to preclude taxpayer
claims. See Adair v Michigan, 470 Mich 105; ___ NW2d ___
(June 9, 2004) (Weaver, J. dissenting in part and
concurring in part.) Finally, art 11, § 5 grants power to
any citizen to pursue injunctive or mandamus relief for
violations of the provisions.

24

others, and that what are called the checks and balances of

government constitute each a restraint upon the rest.”

Sutherland, supra at 325. Justice COOLEY elaborated:

The Legislature prescribes rules of actions
for the courts, and in many particulars may
increase or diminish their jurisdiction; it also,
in many cases, may prescribe rules for executive
action, and impose duties upon, or take powers
from the governor; while in turn the governor may
veto legislative acts, and the courts may declare
them void where they conflict with the
constitution, notwithstanding, after having been
passed by the Legislature, they have received the
governor’s approval. But in each of these cases
the action of the department which controls,
modifies, or any manner influences that of
another, is strictly within its own sphere, and
for that reason gives no occasion for conflict,
controversy or jealousy. The Legislature in
prescribing rules for the courts, is acting
within its proper province in making laws, while
the courts, in declining to enforce an
unconstitutional law, are in like manner acting
within their proper province, because they are
only applying that which is law to the
controversies in which they are called upon to
give judgment. It is mainly by means of these
checks and balances that the officers of the
several departments are kept within their
jurisdiction, and if they are disregarded in any
case, and power is usurped or abused, the remedy
is by impeachment, and not by another department
of the government attempting to correct the wrong
by asserting a superior authority over that which
by the constitution is equal.” [Id.]
The legislative power includes the power to create new

legal rights. And, where the Legislature chooses, it may

exercise its discretion to create and define new causes of

25

action.28 Unlike its federal counterpart, the jurisdiction

of the Michigan Judiciary is not limited by the case or

controversy limitations expressed in Article III, § 2 of

the United States Constitution nor by the federal court’s

ever-evolving interpretation of those limitations.

Without a doubt, the constitutionality of MEPA’s

citizen-suit provision remains “teed up” for a future open

and direct ruling that Lee’s judicial standing test

supercedes the Legislature’s authority to confer standing.

The majority’s application of Lee’s standing test to any

person’s legislatively conferred and constitutionally-based

28
Art 3, § 7 provides:
The common law and the statute laws now in
force, not repugnant to this constitution, shall
remain in force until they expire by their own
limitations, or are changed, amended or repealed.

Interestingly, the majority recognized that this
constitutional provision grants the Legislature the power
to create a cause of action, limit or modify the cause of
action, eliminate a cause of action, or take the less
drastic step of limiting the damages recoverable for a
particular cause of action. Phillips v Mirac, Inc, 470
Mich 415; __ NW2d __ (2004) (opinion of TAYLOR, J.). Art 3,
§ 7 is an additional constitutional basis for concluding
the Legislature has the authority to define who has
standing to pursue a cause of action that it creates and
defines. By concluding to the contrary in this case, the
majority violates the separation of powers defined in the
Michigan Constitution by allowing judge-made standing tests
to usurp legislative policy decisions.

26

standing under MEPA improperly enlarges the court’s power

at the expense of the Legislature’s power, ironically

violating the very “constitutional architecture” the

majority purported to protect in Lee.29

V. Plaintiffs have standing under MCL 324.1701(1)

The circuit court concluded that plaintiffs lack

standing to sue under MEPA in light of Lee. To reach this

conclusion, that court reviewed affidavits of members of

plaintiff organizations and made the following comments

from the bench:

They were concerned about this, they were
concerned about that, they were concerned that
there might not be as many birds around Goose
Lake as there used to be. And I’m not going to
take the time to go through the affidavits one by
one, but I think that anybody who reads them will
see how often the words or the phrases “I am
concerned” without any stated basis in those
affidavits for the reason for being concerned. I
am concerned that there will be an impact, I am
concerned that there has been a diminishment of
the fishery in Goose Lake, and I’m concerned that
the mining activities will further diminish the
fishery. That’s not enough.

29
With regard to the balance of governmental powers,
it is worth noting that because the current majority would
interpret the power of the Michigan court as limited by the
Art III, § 2 of the federal constitution, it has freed
itself to impose restrictions on access to Michigan courts
beyond those of the Legislature. Moreover, no other branch
of government can check or balance the majority’s exercise
of its improperly assumed power.

27

 Plaintiffs appealed and the Court of Appeals reversed.

The Court of Appeals reviewed the plain language of MEPA

and, citing Ray, correctly held that plaintiffs have

standing. The Court of Appeals stated that it “declined

defendants’ invitation to read an additional requirement of

compliance with non-statutory standing prerequisites,” i.e.

judge-made standing tests. Unpublished memorandum opinion,

issued June 11, 2002 (Docket No. 232706). In a footnote,

the Court of Appeals aptly commented that it found no

indication in Lee that this Court intended to overrule Ray

and noted that the statute at issue in Lee could be

distinguished because it did not “contain a provision

expressly authorizing any person to maintain an action for

violations or omissions of the act.” Slip op at 2.

I agree with the Court of Appeals that plaintiffs have

standing under MEPA. Consistent with the people’s mandate

in art 4, § 52, the Legislature has determined that actual

or threatened pollution, impairment, or destruction of

natural resources is an injury that any person may seek to

enjoin in circuit court. MCL 324.1701(1). In this case,

plaintiffs have alleged that the defendant’s proposed

mining will harm natural resources. This is sufficient

under MEPA to allow the plaintiffs their day in court.

28

Once in the door, plaintiffs must next establish their

prima facie case as required by MCL 324.1703(1).30

VI. Decoding the Majority Opinion

The Legislature’s grant of standing to “any person” in

MCL 324.1701(1) is unquestionably broader than Lee’s judge-

made standing test. The majority retains its firm belief

that Lee’s standing test is grounded in the constitutional

separation of powers. By repeatedly asserting that the

Legislature may not confer standing more broadly than Lee,

the majority has impliedly decided the very constitutional

question they accuse this dissent of improperly reaching.

It appears that, from the majority’s mistaken perspective,

the MEPA’s citizen-suit provision is unconstitutional

because the Legislature’s attempt to confer standing on

“any person” under MEPA violates the separations of powers.

Moreover, it is the majority who, in Lee, created the

constitutional dilemma that must be resolved in this case.

As previously discussed, Lee unnecessarily imported the

30
The realities of a MEPA citizen-suit must not be
forgotten. Plaintiffs must establish their prima facie
case, can receive only declaratory and equitable relief
(not money damages), and may be required to bear their own
costs. MCL 324.1703 and MCL 324.1701. After more than 30
years, MEPA has not spawned an unmanageable stream of
citizen-suits so feared and anticipated by the majority.
Ante at 54-55.

29

federal constitution’s article III case or controversy

constraints on standing into Michigan law. It should also

be noted that in Lee, the parties had not raised or briefed

the applicability of Lujan or article III of the federal

constitution. On its own initiative, the Lee majority

raised Lujan’s standing test and transformed standing in

Michigan into a constitutional question.

I fundamentally disagree with the majority’s

perception of judicial discipline and duty. It is not

necessarily evidence of judicial discipline to dodge the

ultimate issue in a case, be the issue of constitutional

dimension or not. Nor is it disciplined to import into

Michigan law federal constitutional constraints that the

people — the ratifiers of the Michigan Constitution — have

not adopted. Moreover, where the Court specifically

requests that an issue be briefed (as this Court did in

this case) and the issue is squarely presented, dodging the

question destabilizes the law. It is particularly

inappropriate where the parties must bear the cost of

further unnecessary litigation or where the decision

creates confusion for the bench and the bar. In this case,

it is a proper exercise of judicial duty and power to

answer the constitutional question presented by this Court

30

regarding whether Lee’s judge-made standing test supercedes

the Legislature’s authority to confer standing.

Further, while purporting to act with judicial

restraint by leaving the constitutionality of MCL

324.1701(1) in doubt, the majority attempts to chart a

course for the resolution of issues not even before the

Court by suggesting that plaintiffs may not simply rely on

the affidavits to prove that standing exists. Ante at 28.

The majority confuses the issue of standing with a court’s

subject-matter jurisdiction. Ante at 28. The majority

erroneously suggests that the circuit court can reverse

this Court’s unanimous decision that plaintiffs have

standing. Id. However, this Court’s decision that

plaintiffs have standing controls that issue.

The majority then hints that plaintiffs’ affidavits

may be insufficient either to survive a motion for summary

disposition or to meet the plaintiff’s burden of proof.

For this, the majority cites an irrelevant and nonbinding

United States Supreme Court dissenting opinion in a federal

case involving federal law. The plain language of MEPA and

this Court’s own MEPA decisions are a far more appropriate

guide for the circuit court on remand.

MEPA instructs:

31

 When the plaintiff has made a prima facie
showing that the conduct of the defendant has
polluted, impaired, or destroyed or is likely to
pollute, impair, or destroy the air, water, or
other natural resources or the public trust in
these resources, the defendant may rebut the
prima facie showing by the submission of evidence
to the contrary. The defendant may also show, by
way of an affirmative defense, that there is no
feasible and prudent alternative to defendant’s
conduct and that his or her conduct is consistent
with the promotion of the public health, safety,
and welfare in light of the state’s paramount
concern for the protection of its natural
resources from pollution, impairment, or
destruction. Except as to the affirmative
defense, the principles of burden of proof and
weight of the evidence generally applicable in
civil actions in the circuit courts brought under
this part. [MCL 324.1703(1).]

As this Court previously held,

the necessary showing to establish a plaintiff’s
prima facie case is not “not restricted to actual
environmental degradation but also encompasses
probable damage to the environment as well.”
General rules of evidence govern this inquiry,
and a plaintiff has established a prima facie
case when his case is sufficient to withstand a
motion by the defendant that the judge direct a
verdict in the defendant’s favor. [Nemeth v
Abonmarche Dev, Inc, 457 Mich 16, 25; 576 NW2d
641 (1998) (citations omitted).]

This Court has emphasized that MEPA’s, “very efficacy . . .

will turn on how well circuit court judges meet their

responsibility for giving vitality and meaning to the act

through detailed findings of fact.” Ray, supra at 307-308.

VII. Conclusion

32

 The majority decision in this case illustrates how

judicial activism can be disguised as judicial restraint.31

Purporting to be concerned about the separation of powers,

the majority, in actuality, uses its judicial power to

undermine the Legislature’s proper exercise of 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 these plaintiffs is

that the majority will not yield to any grant of standing

by the Legislature that is broader than the majority’s own

judge-made test. The majority’s decision destabilizes the

law and overrules 30 years of precedent. See supra at 3 n

3. The majority decision forces future MEPA plaintiffs to

establish that an actual or threatened environmental harm

has actually injured or will imminently injure them

concretely, that such injury is traceable to the defendant,

or that such injury is redressable as required by the

31
Indeed, the majority has unleashed an assault on
MEPA this term. In this case, the majority applies Lee’s
restrictive standing test to MEPA plaintiffs and leaves the
future of the more permissive legislatively conferred
standing in doubt. By its decision in the Preserve the
Dunes v Dep’t of Environmental Quality, ___ Mich ___; ___
NW2d ___ (2004), the same majority insulates an illegal
sand dune mining permit from scrutiny under MEPA, thereby
sanctioning the destruction of critical dunes.

33

majority opinion in Lee, supra at 739-740, or risk being

kicked out of court for lack of standing. Thus, any

characterization of the majority’s application of Lee’s

judicial standing test as a narrower ground to resolve this

case is judicial gymnastics or gamesmanship, not an example

of true judicial restraint.

The people through Michigan’s Constitution required

the Legislature to pass laws to protect the environment.

Art 4, § 52. MEPA and its citizen-suit provision properly

implements the constitution’s directive. State Hwy Comm,

supra at 184. Lee’s more restrictive judge-made standing

test should not be imposed on plaintiffs by the majority in

this case. Rather, the “any person” standard clearly

expressed by the Legislature through MEPA should be

applied. To suggest or hold otherwise violates the

separation of powers by allowing the judiciary to supercede

the Legislature’s grant of standing to “any person” under

MEPA.

I, therefore, concur only in the majority’s result

that plaintiffs have standing. I would hold that

plaintiffs have standing under MCL 324.1701(1) of the

Michigan environmental protection act. I, therefore,

dissent from all the majority’s reasoning.

Elizabeth A. Weaver

34

 S T A T E O F M I C H I G A N

SUPREME COURT

NATIONAL WILDLIFE FEDERATION
& UPPER PENINSULA ENVIRONMENTAL
COUNCIL,

Plaintiffs-Appellees,

v No. 121890

CLEVELAND CLIFFS IRON COMPANY
& EMPIRE IRON MINING PARTNERSHIP,

Defendants-Appellants,

and

MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSEL J. HARDING, Director
Of the Michigan Department of
Environmental Quality,

Defendant-Appellee.

_______________________________

CAVANAGH, J. (concurring in result).

I agree with the result reached by the majority and

Justice Weaver, but write separately to acknowledge my

change in position since this Court decided Lee v Macomb Co

Bd of Comm’rs, 464 Mich 726; 629 NW2d 900 (2001). In that

case, I signed Justice Kelly’s dissent, which agreed with

the majority’s adoption of Lujan v Defenders of Wildlife,

504 US 555; 112 S Ct 2130; 119 L Ed 2d 351 (1992), as the
test for standing in this state. I now disavow that

position for the reasons expressed in Justice Weaver’s

opinion in Lee, as well as her concurrence in this case.

Lujan should not be used to determine standing in this

state.

Thus, I concur with the result reached by the majority

and the reasoning espoused by Justice Weaver.

Michael F. Cavanagh

2

 S T A T E O F M I C H I G A N

SUPREME COURT

NATIONAL WILDLIFE FEDERATION
and UPPER PENINSULA ENVIRONMENTAL
COUNCIL,

Plaintiffs-Appellees,

v No. 121890

CLEVELAND CLIFFS IRON COMPANY
and EMPIRE IRON MINING PARTNERSHIP,

Defendants-Appellants,

and

MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, and RUSSEL J. HARDING, Director
of the Michigan Department of
Environmental Quality,

Defendant-Appellee.
_______________________________

KELLY, J. (concurring in result only).

I agree with the opinion of Justice Weaver and with

the result reached by the majority.

The Court concludes that plaintiffs have standing and

that they satisfy the judicial test that was adopted in Lee

v Macomb Co Bd of Comm'rs, 464 Mich 726, 747; 629 NW2d 900

(2001) (Kelly, J., dissenting). The concurring justices

believe that this Court should not have adopted the test in
Lee, which incorporates the Lujan requirements.1 I believe

that Lee should not be applied in cases like this one.

The majority disagrees. Consequently, this case

stands for the proposition that an individual bringing suit

under the Michigan environmental protection act (MEPA) must

show a particularized injury to satisfy standing.

However, the majority goes on at great length to

assert that the standing provision in MEPA would violate

the constitutional separation of powers clause absent a

particularized injury. The Court's determination on

standing renders the majority's discourse on the separation

1
Lee adopted the United States Supreme Court
requirements of Lujan v Defenders of Wildlife, 504 US 555;
112 S Ct 2130; 119 L Ed 2d 351 (1992). Lujan requires a
plaintiff seeking standing to establish an actual or
imminent injury to his or her legal rights that is concrete
and particularized. There must be a causal connection
between the defendant's action and the plaintiff's injury,
and the injury must be one for which the court can grant
redress. Lee at 739-740, quoting Lujan at 560-561. I have
come to believe that Lee wrongly adopted en toto the
federal standing requirements. As Justice Weaver notes,
the Lujan standing test was not presented by the parties.
Also, the statute at issue in Lee differed from the statute
under consideration here in one important respect: it
lacked a provision expressly authorizing an individual to
maintain an action for a violation of the act without
having suffered a particularized injury. Here the standing
issue has been fully presented and discussed. Moreover, I
do not believe that rejecting the Lujan requirements now
would work any unfairness that would mandate their
continuing retention in Michigan. Murray v Beyer Mem Hosp,
409 Mich 217, 222-223; 293 NW2d 341 (1980).

2

of powers doctrine unnecessary. This discourse is simply

dicta. Moreover, it departs from the Court’s usual

allegiance to the principle that we do not reach a

constitutional question when narrower grounds will suffice

to resolve an issue. J & J Constr Co v Bricklayers &

Allied Craftsmen, Local 1, 468 Mich 722; 664 NW2d 728

(2003).

If a decision were necessary about whether, absent the

showing of a particularized injury, MEPA’s standing

provision violates the separation of powers doctrine, I

would hold that it does not. The Legislature has the

authority to grant standing to a party who does not satisfy

the judge-made standing requirements of Lujan. Lee wrongly

held that the federal requirements are prerequisites that

every plaintiff must satisfy.

STANDARD OF REVIEW

We review motions for summary disposition de novo.

Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515

(2001). Whether plaintiffs have standing is a question of

law that is also reviewed de novo. Cardinal Mooney High

School v Michigan High School Athletic Ass'n, 437 Mich 75,

80; 467 NW2d 21 (1991). When considering a ruling on a

motion for summary disposition under MCR 2.116(C)(8), we

look only at the pleadings and accept as true all well-

3

pleaded facts. Radtke v Everett, 442 Mich 368, 373; 501

NW2d 155 (1993), citing Abel v Eli Lilly & Co, 418 Mich

311, 324; 343 NW2d 164 (1984).

PROCEEDINGS BELOW

The Marquette Circuit Court applied Lee and dismissed

this lawsuit finding that plaintiffs failed to demonstrate

that they had standing.2 The Court of Appeals disagreed and

reinstated the claim, holding that plaintiffs have standing

under MEPA. Unpublished memorandum opinion of the Court of

Appeals, issued June 11, 2002 (Docket No. 232706). We

granted leave to appeal specifically limited to the issue

"whether the Legislature can by statute confer standing on

a party who does not satisfy the judicial test for

standing" that was adopted in Lee. 468 Mich 941 (2003).

The Legislature May Confer Rights Enforceable through
the Power of the Judiciary

The Michigan environmental protection act explicitly

recognizes the right of "any person" to bring suit in

Michigan courts to protect the public trust in our land,

water, and other natural resources. The Legislature

2
Defendants' motion to dismiss plaintiffs' petition
for interlocutory review was brought under MCR 2.116(C)(8).
Although the circuit court found that plaintiffs had failed
to establish a prima facie case, the order dismissed the
case solely for lack of standing.

4

accomplished this by writing broad standing into the act,

supplementing the state's enforcement power with what has

been termed "private [a]ttorneys [g]eneral." Associated

Industries of NY State v Ickes, 134 F2d 694, 704 (CA 2,

1943). As the beneficiaries of that trust, each of us is

entitled to bring suit to conserve our environment.

The act fulfills a state constitutional obligation.

Hwy Comm v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974).

It springs from Const 1963, art 4, § 52 which provides:

The conservation and development of the
natural resources of the state are hereby
declared to be of paramount public concern in the
interest of the health, safety and general
welfare of the people. The legislature shall
provide for the protection of the air, water and
other natural resources of the state from
pollution, impairment and destruction.

Intentionally mirroring this language in the act, the

Legislature wrote: "any person may maintain an action

. . . for declaratory and equitable relief . . . for the

protection of the air, water, and other natural resources"

of the state. MCL 324.1701(1).

Its decision to open wide the courthouse doors through

the act's standing provision merely returns to the people

some of the power to ensure that environmental laws are

executed. Const 1963, art 1, § 1. The courts should

acknowledge and respect this provision as a clear

5

expression of legislative intent. Dressel v Ameribank, 468

Mich 557, 562; 664 NW2d 151 (2003).

Michigan's Use of Private Attorneys General

When interpreting the Constitution, we give its words

their common understanding. We assume that they were not

intended to have “elaborate shades of meaning” or to

require, in order to be understood, “the exercise of

philosophical acuteness or judicial research.” Michigan

Farm Bureau v Secretary of State, 379 Mich 387, 391; 151

NW2d 797 (1967), quoting 1 Story, Constitution (5th ed), §

451, p 345.

We are mindful that the people expect and are entitled

that their constitutional rights not be hobbled by the

courts. With regard to art 4, § 52, the people may

reasonably depend that the courts will not thwart the

Legislature’s efforts to fulfill its mandate to protect our

public's trust in Michigan's natural resources. We must

not import requirements for access to the courts that are

not founded on our Constitution. Yet the majority has

created one such requirement by adopting the Lujan "case"

and "controversy" rule.

Before Lee, other provisions in our state Constitution

allowed suits to be brought in state courts by parties who

do not satisfy the Lujan requirements. For example, art

6

11, § 5 allows “any citizen” to seek an injunction to

enforce its provisions. The Headlee Amendment states, “Any

taxpayer of the state shall have standing to bring suit in

the Michigan Court of Appeals to enforce sections 25

through 31”3 of article 9. Const 1963, art 9, § 32

(emphasis added). This Court may issue advisory opinions.4

A particularized injury need not be demonstrated in order

to sustain suits under these provisions. See In re Request

for Advisory Opinion on Constitutionality of 1997 PA 108,

402 Mich 83; 260 NW2d 436 (1977).5

And citizens' suits have long been accepted in our

jurisprudence. They, along with other actions brought by a

person who lacks an individualized injury, were known to

the framers of the federal constitution. They existed in

the legal practice in the United States and England when

the federal constitution was written. Individuals were

allowed, also, to bring suits for writs of quo warranto and

mandamus. Sunstein, What’s Standing After Lujan? Of

Citizens Suits, “Injuries,” and Article III, 91 Mich L R

3
These sections address the state’s power to tax and
spend.
4
Const 1963, art 3, § 8.
5
The inference that I draw from these provisions is
that the state's judicial power is broad. The majority
draws the opposite inference. See ante at 21 n 13.

7

163, 170 (1992). Individuals were allowed, also, to bring

mandamus actions in the states. See Sunstein at 171. See

also Union Pacific Railroad v Hall, 91 US 343 (1875).

In England, suits by individuals, private attorneys

general, could be brought under the informers’ action and

the relator action.

In the informers' action, cash bounties were
awarded to strangers who successfully prosecuted
illegal conduct. In relator actions, suits would
be brought formally in the name of the Attorney
General, but at the instance of a private person,
often a stranger. [Sunstein at 172.]

Merely because the framers of our state Constitution

created a tripartite government like the federal

government, it does not follow that they intended to

eliminate actions by private attorneys general.

The Separation of Powers Argument

The state separation of powers doctrine reads simply:

The powers of government are divided into
three branches: legislative, executive and
judicial. No person exercising powers of one
branch shall exercise powers properly belonging
to another branch except as expressly provided in
this constitution.[6] [Const 1963, art 3, § 2.]

6
The most obvious meaning of this sentence is that one
individual may not simultaneously hold office in more than
one branch of government. See Lutz, Popular Consent and
Popular Control: Whig Political Theory in the Early State
Constitutions, (Baton Rouge: La State U Press, 1980) 96.
The federal constitution does not contain this prohibition.
(continued . . . .)

8

 It has been understood that this provision is not to

be applied in an overly rigid fashion. Some overlap is

acknowledged to exist in the functioning of the various

branches. The state Constitution permits it. For

instance, a civil rights commission within the executive

branch is vested with some lawmaking power. Const 1963,

art 5, § 29. Article 4, § 33 provides the Governor with

veto power over legislation, and art 11, § 7 provides the

Legislature with impeachment authority. Indeed, any grant

of legislative powers to executive agencies would be

unconstitutional per se if some overlap between the

branches of government were not permissible. See JW

Hampton, Jr, & Co v United States, 276 US 394; 48 S Ct 348;

72 L Ed 624 (1928).

The courts, also, have recognized that the separation

of powers doctrine allows limited overlap and interaction

between the branches. Soap & Detergent Ass’n v Natural

Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982). See

also Judicial Attorneys Ass'n v Michigan, 459 Mich 291,

315-316; 586 NW2d 894 (1998) (Taylor, J., dissenting),

citing the Court of Appeals dissent of Judge Markman.

(continued . . . .)

See O’Donaghue v United States, 289 US 516; 53 S Ct 740; 77

L Ed 1356 (1933).

9

Accordingly, when one branch exercises its power, it may

overlap the exercise of power belonging to another branch.

For example, the executive branch may utilize hearing

officers to attempt to resolve disputes. The Judiciary may

review the decisions of those hearing officers, although

doing so may appear to infringe on the executive branch's

exercise of its power to administer the law.7

The majority in Lee applied the federal separation of

powers and standing doctrines to the state and created a

mandatory particularized injury requirement for standing.

This requirement is not found in the text of either the

federal or state constitutions. To exist, it had to be

gleaned from the historical context of the constitutions.

However, a plumbing of that context reveals no support for

a belief that a person must show a particularized injury

before gaining standing in order to bring a citizens' suit.

See pp 7-8 of this opinion.

Even though the federal separation of powers doctrine

has been found to require a particularized injury for

standing in federal courts, it does not follow that the

7
To say as the majority does that the powers of the
three branches do not overlap while the exercise of their
respective powers may, ante at 47, is a semantic
distinction lacking a difference.

10

same rule applies in Michigan. Our state's courts are not

identical to our federal courts. They are part of a

government having broader powers and broader jurisdiction

than the federal government and having judges who are

selected by the people.

Although the state and federal governments are

similarly structured, the scope of the powers of their

respective branches is different. That is because the

natures of the two governments are inherently different.

The federal government is one of enumerated powers. The

states retain any powers not expressly ceded to the federal

government. US Const, Am X.

State sovereignty to address any social problem that

threatens the public welfare is plenary. Washington-

Detroit Theatre Co v Moore, 249 Mich 673, 680; 229 NW 618

(1930). Michigan’s Constitution, like that of many other

states,8 includes detailed substantive social and economic

provisions. See, e.g., articles 8-10 on Education, Finance

and Taxation, and Property. Accordingly, the power of the

state's judiciary is plenary as well, and Michigan’s courts

8
Hershkoff, State Courts and the “Passive Virtues”:
Rethinking the Judicial Function, 114 Harv L Rev 1833, 1855
n 116 (2001).

11

have general, broad subject-matter jurisdiction. Const

1963, art 6, § 1. See MCL 600.775.

By contrast, the jurisdiction of federal courts9 is

limited. For instance, a federal case must arise under a

federal question or the parties must have diversity of

citizenship. Federal judicial power is limited to "cases"

and "controversies," a fundamental restriction. Allen v

Wright, 468 US 737, 750; 104 S Ct 3315; 82 L Ed 2d 556

(1984). Contrary to the majority's assertion,10 I do not

argue that this restriction defines the judicial power.

Instead, it limits federal courts' utilization of the

judicial power to certain disputes. By contrast, the

judicial power inherent in Michigan's courts may be applied

under a wider range of circumstances.

The federal standing and separation of powers

doctrines adopted by Lee from Lujan are predicated in part

also on the fact that federal judges are not directly

accountable to the people. United States v Richardson, 418

US 166, 180; 94 S Ct 2940; 41 L Ed 2d 678 (1974) (Powell,

J., concurring). Federal judges are appointed by the

9
See US Const, art III, § 2.

10
Ante at 23-24.

12

President11 and may be removed only by impeachment.12 By

contrast, our state judges are elected by the people.13

The United States Supreme Court has recognized that

access to state courts is not limited by the federal

constitution. ASARCO, Inc v Kadish, 490 US 605, 616-617;

109 S Ct 2037; 104 L Ed 2d 696 (1989). Everything

considered, it is not surprising that the qualifications

for standing in state courts are broader than in federal

courts.

Other states have determined that their judicial power

is not constrained by the federal model. For example,

Indiana has held:

While Article III of the United States
Constitution limits the jurisdiction of federal
courts to actual cases and controversies, the
Indiana Constitution does not contain any similar
restraint. Thus, although moot cases are usually
dismissed, Indiana courts have long recognized
. . . an exception to the general rule when the
case involves questions of "great public
interest." [In re Lawrance, 579 NE2d 32, 37
(Ind, 1991).]

Similarly, Minnesota has recognized that federal

standing concerns historically have been related to whether

a dispute brought for adjudication is in an adversary

11
US Const, art II, § 2.

12
US Const, art III, § 1 and art II, § 4.

13
Const 1963, Art 6, §§ 2, 8, 12, 16.

13

context and is capable of judicial resolution. However,

when standing has been conferred by a state statute, “there

is no constitutional basis for imposing a more stringent

standing requirement [than that] which is set by the

governing statute.” Minnesota Pub Interest Research Group

v Minnesota Dep't of Labor & Industry, 311 Minn 65, 73; 249

NW2d 437 (1976) citing Ass'n of Data Processing Service

Organizations, Inc v Camp, 397 US 150, 151; 90 S Ct 827; 25

L Ed 2d 184 (1970). See also Dep't of Revenue v Kuhnlein,

646 So 2d 717 (Fla, 1994), Chester Co Housing Auth v

Pennsylvania State Civil Service Comm, 556 Pa 621; 730 A2d

935 (1999), In Life of the Land v Land Use Comm, 63 Hawaii

166; 623 P2d 431 (1981), and Sears v Hull, 192 Ariz 65; 961

P2d 1013 (1998).

Of course, this is not to say that, before Lee,

Michigan was without standing requirements. Simply, they

were more encompassing than the federal requirements. To

have standing in Michigan courts, a person had to show the

existence of a dispute over a legal right. Daniels v

People, 6 Mich 381, 388 (1859). See Sunstein at 170. The

14

necessary showing did not need to rise to the level of a

"case" or "controversy."14

Our state has relied on other requirements which also

serve to ensure that standing is not too broadly applied.

For example, the ripeness requirement ensures that a claim

has actually arisen and that it has not been negated.

Obenauer v Solomon, 151 Mich 570; 115 NW 696 (1908). The

requirement that the case not be moot ensures that it does

not present a purely abstract question and that only actual

disputes are litigated. East Grand Rapids School Dist v

Kent Co Tax Allocation Bd, 415 Mich 381, 390; 330 NW2d 7

(1982). See p 17 of this opinion.

I believe that our state's standing provisions before

Lee sufficiently ensured that judicial power was properly

constrained while allowing vigorously pursued suits to

proceed. The decision in Lee wrongly blocked access to our

state's courts.

Hence, contrary to the majority’s assertion, Lee's

standing requirements are not essential to prevent the

14
When the majority characterizes “cases” and
“controversies” as synonymous with “disputes,” ante at 7,
it is mistaken. See Lujan at 560. Notably, the majority
produces no authority for this proposition. Clearly,
"case" and "controversy" have specific meanings. Id.

15

judicial branch from overpowering the legislative branch

and the executive branch.

THE SEPARATION OF POWERS DOCTRINE AND MEPA

Turning to the interplay between the Michigan

environmental protection act and the separation of powers

clause, I cannot conclude that the act offends the clause.

Separation of powers principles ensure that courts do

not move beyond the area of judicial expertise and that

political questions are not answered by a branch of

government unaccountable to the people. House Speaker v

Governor, 443 Mich 560, 574; 506 NW2d 190 (1993). I am

unable to discern how MEPA's private attorneys general

standing provision will offend these principles. The

Legislature made the public's interest in the environment a

legal right.15 It is authorized to determine who may

enforce such rights and in what manner. Davis v Passman,

442 US 228, 241; 99 S Ct 2264; 60 L Ed 2d 846 (1979).

MEPA is an expression of public concern for protecting

the state’s natural resources that was passed into law

through the normal political process. It reflects the

15
An inherent Legislative power is to create legal
rights enforceable through the judiciary and define chains
of legal causation. See Lujan at 578; 580 (Kennedy, J.,
concurring).

16

determination that the resources of the executive branch

should be supplemented with those of the people. The

majority today threatens to diminish the victory signified

by its passage.

MEPA does not enable the judiciary to exercise

legislative power at the instigation of a disinterested

plaintiff. The structure of MEPA ensures that the

plaintiffs are not mere interlopers. The act requires a

plaintiff to make a prima facie showing of environmental

damage. MCL 324.1703. Hence, there will always be alleged

actual or imminent harm that will ensure that cases like

this one will be ripe and that they will not be moot. See

pp 15 of this opinion.

This case presents one such actual, live controversy.

The defendants' mine expansion is imminent. Plaintiffs'

membership includes people who live and recreate in the

area of the mine and claim to be adversely affected by its

expansion.

Environmental and other collective concerns often have

strong personal manifestations, called "passive use" or

"standby value" interests. See, e.g., General Electric Co

v United States Dep't of Commerce, 327 US App DC 33, 38;

128 F3d 767 (1997). These interests ensure that

17

environmental suits are vigorously pursued by people with a

strong personal belief in their claim.

I cannot perceive that the judiciary would be enabled

to make policy by this Court's affirmance of the

constitutionality of MEPA's standing provision without the

need for particularized injury. Sutherland v Governor, 29

Mich 320, 324 (1874).

Neither does MEPA offend executive authority. The

Constitution states that "The executive power is vested in

the governor." Const 1964, art V, § 1. However, it is not

vested solely in the Governor. Obviously, the Governor may

delegate some of her power. As stated, the Legislature may

vest some of its power in an agency. Similarly, the

Legislature may return it to the people. The people know

how to vest power exclusively in a single branch of

government. For example, our Constitution says, "The

judicial power is vested exclusively in one court of

justice." Const 1963, art VI, § 1 (emphasis added).

The Legislature's decision to allow the people to

directly enforce MEPA would offend the executive branch if

it interfered with the executive branch's ability to

accomplish its functions. Nixon v Administrator of Gen

Services, 433 US 425, 443; 97 S Ct 2777; 53 L Ed 2d 867

(1977), citing United States v Nixon, 418 US 683, 711-712;

18

94 S Ct 3090; 41 L Ed 2d 1039 (1974). MEPA does not do

this.

MEPA includes a mechanism to ensure that executive

branch decisions are respected. It allows the judiciary to

refer environmental protection act cases to state agencies

for resolution. MCL 324.1704(2). MEPA is explicitly

“supplementary to existing administrative and regulatory

procedures as provided by law.” MCL 324.1706. Nothing in

it encourages or authorizes the judiciary to itself

exercise executive power or hinders the discretion of the

executive branch. MEPA poses no danger of "aggrandizement

or encroachment" of power that would trigger separation of

powers concerns. Mistretta v United States, 488 US 361,

382; 109 S Ct 647; 102 L Ed 2d 714 (1989).

The New Judge-Made Standing Limitation

Obviously, this Court is entitled to constrain its own

power and limit standing as it has done in this case. But

in doing so, it creates a self-inflicted wound. See Warth

v Seldin, 422 US 490, 500; 95 S Ct 2197; 45 L Ed 2d 343

(1975). No constitution requires it. People v Goldston,

470 Mich ___, ___; ___ NW2d ___ (2004). It is an entirely

judge-made limitation, a standing requirement fabricated by

judges where none existed before. And, because it subverts

19

the popular will, it injures more than the judicial branch.

It injures the people.

The Court is ill-advised to curb its authority under

the guise of respect for another branch of government. Its

decision today is an unwarranted contraction of the right

of the people to use the judicial and the legislative power

to protect their interest in preserving the environment.

It is not, as the majority asserts, a prudent check on an

attempted expansion of legislative power. Ante at 9-11.

MEPA does not violate constitutional separation of

powers principles despite the fact that it lacks a

particularized injury requirement. These principles

require that the judiciary respect the Legislature’s

decision and fulfill its role to adjudicate disputes as a

co-equal branch of the state’s government.

The majority advances a parade of horribles16 that it

fears would emerge if MEPA's standing provision were not

supplemented by the Lujan standing requirements.17 When

16
For a similar demonstration of this majority's
proclivity for doomsday prophesy, see its conclusion in
Preserve the Dunes v Dep't of Environmental Quality, ___
Mich ___; ___ NW2d ___ (2004). I note that there, I would
have respected the will of the people to enjoin critical
dune mining by ineligible entities. The majority should
have done likewise. See ante at 38 n 25.
17
See ante 54-55.

20

examined closely, the horribles tend to shrink. Under

MEPA, a plaintiff must establish prima facie environmental

harm sufficient to support a claim. See MCL 324.1703(1)

and Nemeth v Abonmarche Dev, Inc, 457 Mich 16; 576 NW2d 641

(1998); MCR 2.116(C)(8), (10). Moreover, existing court

rules deter frivolous suits. See MCR 2.114 and MRPC 3.1

and 3.3.

It is improper to hold the plaintiffs in this case to

the Lujan judicial test for standing. Given that the

express will of the people is to the contrary, plaintiffs

now and in the future should not have to shoulder the Lujan

standing burden in MEPA cases.

CONCLUSION

I agree with the opinion of Justice Weaver and with

the result reached by the majority. Plaintiffs have

standing. The authority of the Legislature to give the

people a legal right to protect their interest in the

environment through private attorneys general should not be

abridged.

I would find that the Michigan Legislature did not

violate the state Constitution by granting standing under

MEPA to a party who does not satisfy the judicially crafted

Lee test. The applicable test here, the MEPA test, was

carefully devised by the Legislature. Because it gave

21

standing to "any person," I believe that any person should

be able to avail himself of that law. The Court of Appeals

decision and analysis should be affirmed and the case

remanded to the circuit court for trial.

Marilyn Kelly
Michael F. Cavanagh

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