Federated Insurance v. Oakland County Road Commission

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

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

FILED JUNE 21, 2006

FEDERATED INSURANCE COMPANY
and CARL M. SCHULTZ, INC.,

Plaintiffs-Appellees,

v No. 126886

OAKLAND COUNTY ROAD COMMISSION,

Defendant-Appellee.

and

ATTORNEY GENERAL,

Intervenor-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, C.J.

At issue in this case is whether the Attorney General can appeal as an

intervenor in this Court on behalf of the people and a state agency when the named

losing parties did not themselves seek review in this Court. Notwithstanding the

Attorney General’s broad statutory authority to intervene in cases, we hold that to

pursue such an appeal as an intervenor there must be a justiciable controversy,
which in this case requires an appeal by an “aggrieved party.” Because neither of

the losing parties below filed a timely appeal, and because the Attorney General

does not represent an aggrieved party for purposes of this case, there is no longer a

justiciable controversy. Under such circumstances, the Attorney General may not

independently appeal the Court of Appeals judgment. We therefore dismiss this

appeal.

I. Facts and Procedural History

In 1988, Carl M. Schultz, Inc. (hereafter plaintiff), discovered that an

underground storage tank and piping system located on its property had released

petroleum into the soil. The Department of Natural Resources (DNR) directed

plaintiff to take action to remedy this situation, and, in 1991, plaintiff began

constructing an on-site treatment system. In 1992, the treatment system began

operation, and, in 1993, the DNR approved plaintiff’s site investigation work plan.

In 1991, defendant Oakland County Road Commission released petroleum

on property adjacent to plaintiff’s property. In 1992, plaintiff began to suspect

that some of this petroleum had migrated onto its property. By 1995, the DNR

concluded that at least some of the petroleum detected on plaintiff’s property had

originated from defendant’s property. In 2000, plaintiff and its insurer, Federated

Insurance Company, filed a cost-recovery action against defendant pursuant to

provisions of the Natural Resources and Environmental Protection Act (NREPA),

MCL 324.20101 et seq., for the added costs associated with the cleanup of

petroleum contaminants that had originated from defendant’s property.

The trial court granted defendant’s motion for summary disposition,

concluding that the action was barred by the six-year limitations period found in

the NREPA, and the Court of Appeals affirmed. 263 Mich App 62; 687 NW2d

329 (2004). On behalf of the people of the state and the Michigan Department of

Environmental Quality (MDEQ) (the successor to the DNR), which had never

been a party in the trial court proceedings or in the appeal in the Court of Appeals,

the Attorney General then filed a timely application for leave to appeal in this

Court as an intervening appellant. Plaintiffs, however, did not file a timely

application for leave to appeal even though they “lost” under the Court of Appeals

opinion. This Court granted the Attorney General’s application for leave to appeal

and denied plaintiffs’ cross-application for leave to appeal. 472 Mich 898 (2005).1

1
Plaintiffs filed an application for leave to appeal in this Court after the
deadline for filing an application for leave to appeal had expired. Plaintiffs sought
to avoid MCR 7.302(C)(3) (“[l]ate applications will not be accepted”) by
designating the appeal as a cross-application for leave to appeal. Plaintiffs’
“cross-application” fully supported the Attorney General-intervening appellant's
application for leave to appeal. But, plaintiffs cannot be considered cross-
appellants where their position is the same as that taken by the Attorney General-
intervening appellant. Therefore, although plaintiffs referred to their application
for leave to appeal as a cross-application, it was actually an untimely application
for leave to appeal. This is why we denied plaintiffs’ application.

II. Standard of Review

Defendant argues that the Attorney General lacks the authority to intervene

to appeal the judgment of the Court of Appeals. Because this issue implicates the

constitutional authority of the judiciary and the Attorney General, we review it de

novo. Co Rd Ass’n of Michigan v Governor, 474 Mich 11, 14; 705 NW2d 680

(2005).

III. Analysis

Following adjudication in the Court of Appeals that resulted in a published

opinion, where the parties were plaintiffs Federated Insurance Company and Carl

M. Schultz, Inc., and defendant Oakland County Road Commission, the Attorney

General, representing the people of the state and the MDEQ, has now sought to

appeal in this Court, even though neither of the losing parties in the Court of

Appeals sought timely leave to appeal. The Attorney General argues that the

Court of Appeals misconstrued MCL 324.20140(1)(a), a statute that the MDEQ

frequently litigates. Resolution of whether this intervention and appeal are

permissible implicates standing, the “aggrieved party” concept, and what

constitutes a justiciable controversy.

As we indicated in Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,

471 Mich 608, 612; 684 NW2d 800 (2004), citing Lee v Macomb Co Bd of

Comm’rs, 464 Mich 726, 734; 629 NW2d 900 (2001), standing refers to the right

of a party plaintiff initially to invoke the power of the court to adjudicate a

claimed injury in fact. In such a situation it is usually the case that the defendant,

by contrast, has no injury in fact but is compelled to become a party by the

plaintiff’s filing of a lawsuit. In appeals, however, a similar interest is vindicated

by the requirement that the party seeking appellate relief be an “aggrieved party”

under MCR 7.203(A) and our case law.2 This Court has previously stated, “To be

aggrieved, one must have some interest of a pecuniary nature in the outcome of

the case, and not a mere possibility arising from some unknown and future

contingency.” In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948),

citing In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936).3 An

2
See, e.g., Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 225;
249 NW2d 29 (1976) (Coleman, J.), citing In re Critchell Estate, 361 Mich 432;
105 NW2d 417 (1960). “‘A party who could not benefit from a change in the
judgment has no appealable interest.’” “‘[O]f course one may not appeal from a
judgment, order or decree, in his favor by which he is not injuriously affected.’”
Id. at 226, quoting 4 Am Jur 2d, Appeal and Error, §§ 182, 184. See also In re
Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948) (“‘It is a cardinal
principle, which applies alike to every person desiring to appeal, that he must have
an interest in the subject-matter of the litigation. Otherwise, he can have no
standing to appeal.’”) (citation omitted).
3
The Attorney General does not fit within this definition of an “aggrieved
party.” Thus, contrary to the dissent’s claim, our holding is not “unprecedented.”
The dissent further asserts that we are legislating from the bench a new restriction
on the Attorney General’s authority to intervene. Nothing could be further from
the truth. Our holding is fully supported by constitutional principles and prior
case law.

aggrieved party is not one who is merely disappointed over a certain result.4

Rather, to have standing on appeal, a litigant must have suffered a concrete and

particularized injury, as would a party plaintiff initially invoking the court’s

power. The only difference is a litigant on appeal must demonstrate an injury

arising from either the actions of the trial court or the appellate court judgment

rather than an injury arising from the underlying facts of the case.5

With regard to the necessity of a justiciable controversy, it derives from the

constitutional requirement that the judiciary is to exercise the “judicial power” and

only the “judicial power.”

In giving meaning to what the “judicial power” is in our Constitution, we

explained in Nat’l Wildlife Federation, supra at 614-615:

The “judicial power” has traditionally been defined by a
combination of considerations: the existence of a real dispute, or
case or controversy; the avoidance of deciding hypothetical
questions; the plaintiff who has suffered real harm; the existence of
genuinely adverse parties; the sufficient ripeness or maturity of a

4
The dissent contends that the Attorney General has standing because the
MDEQ, the state agency that the Attorney General is representing, is “interested in
the proper enforcement of the NREPA . . . .” Post at 12. However, if an interest
in the proper enforcement of a statute were enough to confer standing, the
Attorney General would always have standing because the people of Michigan
and state agencies are always interested in the proper enforcement of statutes.
Contrary to the dissent’s contention, an interest in the proper enforcement of a
statute has never before been thought sufficient to confer standing; instead, a
concrete and particularized injury is required to confer standing.
5
Tachiona v United States, 386 F3d 205, 210-211 (CA 2, 2004). See also
Kootenai Tribe of Idaho v Veneman, 313 F3d 1094, 1109 (CA 9, 2002).

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, and
one in which the plaintiff has suffered a “particularized” or personal
injury. [Citation omitted.][6]

The Attorney General’s authority to intervene is found in two statutes.

MCL 14.101 states:

The Attorney General of the State is hereby authorized and
empowered to intervene in any action heretofore or hereafter
commenced in any court of the State whenever such intervention is
necessary in order to protect any right or interest of the State, or of
the people of the State. Such right of intervention shall exist at any
stage of the proceeding, and the Attorney General shall have the
same right to prosecute an appeal, or to apply for a re-hearing or to

6
The dissent once again also accuses us of “further expand[ing] [our]
judicial power.” Post at 18 n 18. However, as this Court in Nat’l Wildlife, supra
at 617-618, said:

[T]he exact opposite is true. 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. [Emphasis in
original.]

take any other action or step whatsoever that is had or possessed by
any of the parties to such litigation.

Similarly, MCL 14.28 states:

The Attorney General shall prosecute and defend all actions
in the supreme court, in which the state shall be interested, or a
party; he may, in his discretion, designate one of the assistant
attorneys general to be known as the solicitor general, who, under
his direction, shall have charge of such causes in the supreme court
and shall perform such other duties as may be assigned to him; and
the attorney general shall also, when requested by the governor, or
either branch of the legislature, and may, when in his own judgment
the interests of the state require it, intervene in and appear for the
people of this state in any other court or tribunal, in any cause or
matter, civil or criminal, in which the people of this state may be a
party or interested.

These statutes purport to provide the Attorney General with the authority to

prosecute, defend, and intervene in certain “actions.” But, this case ceased to be

an “action” when the losing parties below (plaintiffs) failed to file a timely

application for leave to appeal in this Court. Once plaintiffs’ deadline for filing a

timely application for leave to appeal expired, the case ceased to be a justiciable

controversy.7 To the extent one might read MCL 14.101 or MCL 14.28 as

7
If plaintiffs had filed a timely application for leave to appeal, there would
obviously have been a justiciable controversy in which the Attorney General could
have intervened. Consistent with the principles of appellate standing, where the
Attorney General intervenes solely to advocate a general position on the law, the
intervention statutes on which the Attorney General relies confer on the Attorney
General only a form of "statutory amicus,” not true party, status. Thus, if the
Attorney General had sought to intervene in a timely filed appeal by a party with
appellate standing—not to represent a client that had suffered an adverse decision
of a lower court but only to advance a perspective on the law—the Attorney
(continued…)

allowing the Attorney General to prosecute an appeal from a lower court ruling

without the losing party below also appealing, and without the Attorney General

himself being or representing an aggrieved party, the statutes would exceed the

Legislature’s authority because, except where expressly provided,8 this Court is

not constitutionally authorized to hear nonjusticiable controversies.9 Nat’l

Wildlife Federation, supra at 614-615. To give these statutes such a reading

would contravene an operative presumption of this Court that we presume

constitutional intent on the part of the Legislature. See Phillips v Mirac, Inc, 470

Mich 415, 422; 685 NW2d 174 (2004).

IV. Response to the Dissent

The dissent relies on two cases in arguing that the Attorney General should

be allowed to appeal in this Court notwithstanding the fact that the losing parties

below did not file a timely appeal: Mundy v McDonald, 216 Mich 444; 185 NW

(…continued)
General's role would have been limited to advocating the state's position on the
law. Whatever role the Attorney General may properly play in an appeal in which
he intervenes, the precondition for intervention is that there must be a timely
appeal by a party that has appellate standing as outlined in this opinion.
8
See, e.g., Const 1963, art 3, § 8, which permits the legislative and
executive branches of government to request an opinion of this Court on the
constitutionality of legislation not yet in effect.
9
Although the MDEQ might well have an interest in how MCL
324.20140(1)(a) is interpreted, it has not yet suffered a concrete injury on the basis
of the alleged misconstruction of the statute. Moreover, no reason exists to
(continued…)

877 (1921), and Russell v Peoples Wayne Co Bank of Dearborn, 275 Mich 415;

266 NW 401 (1936). These cases, however, are not inconsistent with our holding

today; nor do they support the holding the dissent would adopt.

In Mundy, a circuit judge was sued in circuit court for libel. The Attorney

General’s office, on behalf of the circuit judge, sought dismissal of the lawsuit.

On appeal, this Court rejected the argument that the Attorney General’s office

could not defend a circuit judge who had been sued. The Attorney General’s

office represented an actual defendant party in that lawsuit.

In Russell, a receiver of the Detroit Banker’s Company filed a lawsuit

seeking to have liquidating receivers appointed for other banks. The Attorney

General’s office intervened in the case and moved to dismiss the lawsuit. On

appeal, the plaintiff argued that the Attorney General should not have been

permitted to move to dismiss the case because the public had no interest in the

litigation. This Court rejected the plaintiff’s claim because the banking

commissioner became a “party” when the plaintiff sought to have receivers

appointed. Again, the Attorney General’s office represented an actual party in the

litigation.

(…continued)

prevent the Attorney General from filing a lawsuit on behalf of the MDEQ once

the MDEQ has suffered such an injury, e.g., is denied reimbursement costs.

Each of these cases is inapposite because it presented a justiciable

controversy wherein the Attorney General represented an actual party. In the case

at bar, however, no justiciable controversy exists and the Attorney General does

not represent a party to the dispute. Moreover, none of these cases cited by the

dissent involved the Attorney General attempting to appeal a decision of a lower

court without the losing party below also appealing.

Our opinion does not overrule any cases. Under our holding, the Attorney

General remains free to prosecute actions on behalf of the state and may appear on

behalf of state parties.10 Moreover, it is not inconsistent with the Attorney

General’s authority to intervene in “actions.” As previously explained, we merely

hold that the Attorney General’s authority to intervene does not include the ability

to appeal a nonjusticiable case. Given the untethered language in the dissent, one

has to wonder if there is any circumstance in which the dissent would conclude

that the Attorney General would not have the authority to intervene and pursue an

appeal no matter how unrelated the Attorney General's "interest" may be to

traditional standing considerations.

10
Indeed, contrary to the dissent's contention, we are not holding that the
Attorney General cannot appeal to this Court unless the named losing party also
appeals; rather, we are holding that the Attorney General cannot appeal unless
some aggrieved party appeals. There may be instances where the Attorney
General himself or a party he is representing is aggrieved. This, however, is not
such a case.

Contrary to the dissent's contention, the issue of the Attorney General’s

authority to independently intervene and appeal the Court of Appeals opinion was

raised by the defendant in its brief on appeal; it was argued at oral argument, and it

was briefed by the Attorney General and defendant in supplemental briefs.

Finally, contrary to the dissent's contention, we are not expanding the standing

theory; rather, our holding is consistent with our prior case law as cited in n 2 of

this opinion.

V. Conclusion

We conclude that there is no justiciable controversy because the Attorney

General does not represent an aggrieved party and because neither of the losing

parties below chose to file a timely application for leave to appeal. Under such

circumstances, this Court does not have the authority to hear the Attorney

General’s appeal. Therefore, we dismiss the appeal.

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

STATE OF MICHIGAN

SUPREME COURT

FEDERATED INSURANCE COMPANY,

Plaintiff-Appellees,

V No. 126886

OAKLAND COUNTY ROAD
COMMISSION,

Defendant-Appellee,
and

ATTORNEY GENERAL,

Intervenor-Appellant.

WEAVER, J. (dissenting).

I dissent from the majority’s holding that the Attorney General may not

intervene in this case involving cost recovery for environmental contamination

caused by defendant, Oakland County Road Commission. The majority’s holding

imposes unprecedented and unsupportable limitations on the Attorney General’s

ability to defend the interests of the people of the state of Michigan and to defend

the interests of the Michigan Department of Environmental Quality (MDEQ) in

the enforcement of Michigan law.
I also dissent from the majority’s unprecedented narrowing of who is an

“aggrieved party” for the purpose of invoking the appellate jurisdiction of this

Court. The question of what constitutes an “aggrieved party” was not raised or

briefed by the parties. Yet by reference to inapplicable federal law, the majority

redefines who is an “aggrieved party,” stating:

[T]o have standing on appeal, a litigant must have suffered a
concrete and particularized injury, as would a party plaintiff initially
invoking the court’s power. The only difference is a litigant on
appeal must demonstrate an injury arising from either the actions of
the trial court or the appellate court judgment rather than an injury
arising from the underly facts of the case. [Ante at 6.]

With this holding, the majority expands its novel standing theory adopted in Nat’l

Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800

(2004), by applying it to parties seeking to invoke this Court’s appellate

jurisdiction.

In this case on July 13, 2004, the Court of Appeals held that plaintiff’s cost-

recovery action against defendant was barred by MCL 324.20140(1), the statute of

limitations of the Natural Resources and Environmental Protection Act (NREPA).1

After the Court of Appeals rendered its decision, the Attorney General filed his

motion to intervene on behalf of the people of Michigan and the MDEQ. Within

1
Federated Ins Co v Oakland Co Rd Comm, 263 Mich App 62; 687 NW2d
329 (2004).

the period specified for appeals,2 the Attorney General appealed the decision of

the Court of Appeals in this Court.

In response to the Attorney General’s application, defendant Oakland

County Road Commission challenges the Attorney General’s standing to intervene

in the case.3 This Court granted the Attorney General’s application, directing the

parties to include among the issues to be briefed:

(1) whether the work initiated in 1991 was an “interim
response activity” that did not trigger the statute of limitations
provision set out in MCL 324.20140(1)(a) rather than a remedial
action at that must first be approved or selected at by the Department
of Environmental Quality; and (2) whether the initiation of work for
one release of hazardous substances begins the running of the statute
of limitations for any subsequent or unrelated release of hazardous
substances. [472 Mich 898 (2005).]

No reference was made in this Court’s grant order regarding whether the Attorney

General represents an “aggrieved party.”

I would hold that once the Attorney General intervened, he possessed the

same right to appeal the decision of the Court of Appeals that was had or

possessed by any party.4 At the time the Attorney General appealed, plaintiff,

Federated, still possessed the right to appeal from the decision of the Court of

Appeals. Contrary to the conclusion of the majority, it is irrelevant to the

2
MCR 7.302(C).
3
Federated Insurance Company filed an untimely cross-application for
leave to appeal, which this Court denied. 472 Mich 898 (2005).

authority of the Attorney General to maintain this appeal on behalf of the people

and the MDEQ that Federated did not also perfect an appeal in a timely manner.

I would hold that upon his proper intervention and timely appeal, the

Attorney General had the authority to represent the people of Michigan and the

MDEQ because both parties are “aggrieved parties” within the traditional

understanding of the term. With its decision today, however, the majority not only

imposes unprecedented limits on the authority of the Attorney General to perform

his statutory obligations, it also redefines and narrows who will be deemed an

“aggrieved party” for the purposes of invoking appellate court jurisdiction.

For the reasons below, I would reverse the decision of the Court of Appeals

because the Attorney General has the authority to represent the people of

Michigan and the MDEQ in this appeal. Further, I would hold that the cost-

recovery action was not barred by MCL 324.20140(1).

The law enacted by the Legislature is very clear regarding the power of the

Attorney General to litigate on behalf of the interests of the people of Michigan.

Pursuant to MCL 14.28, the Attorney General may,

when in his own judgment the interests of the state require it,
intervene in and appear for the people of this state in any other court

(…continued)
4
MCL 14.101.

or tribunal, in any cause or matter, civil or criminal, in which the
people of this state may be a party or interested.[5]

MCL 14.101 provides that the Attorney General’s power to intervene exists

at any stage of the proceeding, and the Attorney General shall have
the same right to prosecute an appeal, or to apply for a re-hearing or
to take any other action or step whatsoever that is had or possessed
by any of the parties to such litigation.[6]

This Court, including the members of this majority, has broadly construed the

authority of the Attorney General to litigate on behalf of the people of the state. In

5
MCL 14.28 states in full:

The attorney general shall prosecute and defend all actions in
the supreme court, in which the state shall be interested, or a party;
he may, in his discretion, designate one of the assistant attorneys
general to be known as the solicitor general, who, under his
direction, shall have charge of such causes in the supreme court and
shall perform such other duties as may be assigned to him; and the
attorney general shall also, when requested by the governor, or either
branch of the legislature, and may, when in his own judgment the
interests of the state require it, intervene in and appear for the people
of this state in any other court or tribunal, in any cause or matter,
civil or criminal, in which the people of this state may be a party or
interested.
6
MCL 14.101 states in full:

re Certified Quesiton (Wayne Co v Phillip Morris, Inc), 465 Mich 537, 543-545;

638 NW2d 409 (2002); Mundy v McDonald, 216 Mich 444, 450-451; 185 NW

877 (1921). This Court, including this majority, has stated that “courts should

accord substantial deference to the Attorney General’s decision that a matter

constitutes a state interest.” In re Certified Question, supra at 547.

Until this majority’s decision today, the only limitations on the Attorney

General’s power to intervene have been that the intervention must advance a state,

rather than a merely local, interest,7 and the Attorney General’s intervention must

not be “clearly inimical to the public interest . . . .”8 But now this majority ignores

its own precedent and the express statutory authority provided by MCL 14.101

that permits the Attorney General to intervene on behalf of a state interest at any

time. The majority legislates from the bench a new restriction on the Attorney

General’s authority to intervene by premising it on a losing party’s decision to

pursue or not pursue an appeal.

The majority declares that without a losing party, there is no justiciable

controversy. But as this Court stated in Mundy, supra at 451, “It is too narrow a

view of the case to say that the people of this State are not interested in the defense

in a case of this nature, which involves the purely legal question . . . .” Mundy,

supra, involved an action for libel against a circuit judge. The Attorney General

7
Attorney General ex rel Lockwood v Moliter, 26 Mich 444, 447 (1873).

intervened and filed a motion to dismiss the case on the grounds that the judge was

acting in his official capacity when the allegedly libelous statement was made.

The party alleging libel against the judge challenged the Attorney General’s

authority to intervene to address a purely legal question. This Court in Mundy,

supra at 451, affirmed the authority of the Attorney General to intervene and

stated:

Certainly if the people of the State can be said to be interested
in a criminal proceeding, they are, we think, equally interested in
this action growing out of it, depending as it does entirely upon
whether the acts of the defendant complained of were judicial acts.

In this case, the legal issue involves the proper interpretation of a statute of

limitations within the NREPA. The resolution of this question affects the proper

allocation of costs for response activities for environmental contamination. The

Legislature has very clearly provided that a person who causes environmental

contamination should pay for its cleanup. MCL 324.20102(f) provides that

“liability for response activities to address environmental contamination should be

imposed upon those persons who are responsible for the environmental

contamination.” The logic of Mundy is decisive in this case: Because the people

of Michigan through their Legislature have expressed an interest in the proper

allocation of response activity costs for environmental cleanup, it is “too narrow a

view” to conclude that the people would not also be interested in the proper

(…continued)
8
People v Johnston, 326 Mich 213, 217; 40 NW2d 124 (1949).

interpretation of a statute that affects the allocation of those costs. The majority’s

attempt to distinguish Mundy on the ground that the Attorney General represented

an “actual party” in that case is unpersuasive. The majority fails to grasp that the

people of Michigan became an “actual party” once the Attorney General

intervened in a timely manner on their behalf.

I would conclude that the Attorney General may intervene on behalf of the

people of Michigan to seek a proper interpretation of state law.

In addition to having the authority to intervene on behalf of the people of

Michigan, the Attorney General has the authority to intervene in this matter on

behalf of the MDEQ. The MDEQ is a department of the executive branch. MCL

14.29 provides that “[i]t shall be the duty of the attorney general, at the request of

the governor . . . to prosecute and defend all suits relating to matters connected

with [the Governor’s] departments.”

This Court, including the members of this majority, has specifically

recognized that the Attorney General’s authority to litigate in matters of state

interest necessarily includes the authority to litigate “on behalf of the state’s

political subdivisions in matters of state interest.” In re Certified Question, supra

at 545, citing Michigan ex rel Kelley v CR Equip Sales, Inc, 898 F Supp 509, 514

(WD Mich, 1995). Further, the NREPA expressly provides that the Attorney

General may commence a civil action “on behalf of the state” seeking relief,

including “[a]ny other relief necessary for the enforcement of this part.” MCL

324.20137(1)(k).9 The majority’s opinion, however, fails to recognize or analyze

the interest of the MDEQ in this case.

9
MCL 324.20137(1) provides in full:

In addition to other relief authorized by law, the attorney
general may, on behalf of the state, commence a civil action seeking
1 or more of the following:

(a) Temporary or permanent injunctive relief necessary to
protect the public health, safety, or welfare, or the environment from
the release or threat of release.

(b) Recovery of state response activity costs pursuant to
section 20126a.

(c) Damages for the full value of injury to, destruction of, or
loss of natural resources resulting from the release or threat of
release, including the reasonable costs of assessing the injury,
destruction, or loss resulting from the release or threat of release.

(d) A declaratory judgment on liability for future response
costs and damages.

(e) A civil fine of not more than $1,000.00 for each day of
noncompliance without sufficient cause with a written request of the
department pursuant to section 20114(1)(h). A fine imposed under
this subdivision shall be based on the seriousness of the violation
and any good faith efforts of the person to comply with the request
of the department.

(f) A civil fine of not more than $10,000.00 for each day of
violation of this part or a rule promulgated under this part. A fine
imposed under this subdivision shall be based upon the seriousness
of the violation and any good faith efforts of the person to comply
with this part or a rule promulgated under this part.

(g) A civil fine of not more than $25,000.00 for each day of
violation of a judicial order or an administrative order issued
(continued…)

The MDEQ has a tangible interest in the resolution of this case. In 1995,

the MDEQ notified defendant, Oakland County Road Commission, that the

department had identified and confirmed a release of “free product”10 from an

underground storage tank on defendant’s property that had migrated to plaintiff’s

property. The MDEQ’s letter refers to plaintiff’s property as the CMS “facility.”11

The MDEQ letter states that the treatment system constructed to remediate the

plaintiff’s 1988 separate release of hazardous substances at the CMS facility had

been activated in August 1992. The system had removed hazardous substances

associated with the plaintiff’s release at the CMS facility through approximately

(…continued)
pursuant to section 20119, including exemplary damages pursuant to
section 20119.

(h) Enforcement of an administrative order issued pursuant to
section 20119.

(i) Enforcement of information gathering and entry authority
pursuant to section 20117.

(j) Enforcement of the reporting requirements under section
20114(1), (3), and (6).

(k) Any other relief necessary for the enforcement of this part.

10
“‘Free product’ means a hazardous substance in a liquid phase equal to
or greater than 1/8 inch of measurable thickness that is not dissolved in water and
that has been released into the environment.” MCL 324.20101(r).
11
“‘Facility’ means any area, place, or property where a hazardous
substance in excess of the concentrations which satisfy the requirements of section
20120a(1) or (17) or the cleanup criteria for unrestricted residential use under part
(continued…)

June 1993. The letter indicates that from January 1994 through September 1994,

no hazardous substances had been observed in the plaintiff’s treatment system.

However, in November 1994, the letter states that the CMS treatment

system encountered hazardous substances again. After an investigation by the

department staff, it was confirmed that the hazardous substances appearing in

CMS’s treatment system were different in kind from that which had been released

by the plaintiff. The investigation confirmed that the new hazardous substances

that had appeared in plaintiff’s treatment system derived from a separate release

from defendant’s facility.

The record does not suggest that the MDEQ’s investigation of the separate

release from defendant’s facility is complete. Indeed, the letter recommends that

several actions be taken by defendant to address the hazardous substances, and

that remedial action for the confirmed April 5, 1991, release at the defendant’s

facility be continued. The letter recommends that remedial actions taken by the

defendant be coordinated with those already occurring at the CMS facility. The

letter also provides that the letter “should not be construed as a sign-off on all site

investigations or corrective actions that may be required at [defendant’s] site.” In

other words, the MDEQ has an interest in ongoing investigations and remediation

of environmental contamination from defendant’s facility.

(…continued)

213 has been released, deposited, disposed of, or otherwise comes to be located.”

(continued…)

The MDEQ’s interest in this case derives from its enforcement

responsibility under the NREPA.12 The NREPA provides that the owner or

operator of a facility “is responsible for an activity causing a release” of hazardous

substances into the environment. MCL 324.20126(1)(a). MCL 324.20126a(1)

provides that a person who is liable for a release is jointly and severally liable for

the following:

(a) All costs of response activity lawfully incurred by the
state relating to the selection and implementation of response
activity . . . .

(b) Any other necessary costs of response activity incurred by
any other person consistent with rules relating to the selection and
implementation of response activity promulgate under this part.

(c) Damages for the full value of injury to, destruction of, or
loss of natural resources, including the reasonable costs of assessing
the injury, destruction, or loss resulting from the release.

The letter from the MDEQ to defendant reveals that there was a confirmed

release of hazardous substances into the environment at defendant’s facility in

April 1991, but that the release from defendant’s facility did not appear in

plaintiff’s treatment system until November 1994. Under the NREPA, defendant

is jointly and severally liable for the costs associated with defendant’s release.

MCL 324.20126a(1). The MDEQ is and should be interested in the proper

enforcement of the NREPA against defendant.

(…continued)
MCL 324.20101(o).

The Court of Appeals, however, concluded that this cost-recovery action

against defendant was barred by the statute of limitations because more than six

years had passed since plaintiff began construction of its treatment system in

November 1991. The NREPA statute of limitations at issue provides that the

period of limitations

[f]or the recovery of response activity costs and natural resources
damages pursuant to section 20126a(1)(a), (b), or (c), [is] within 6
years of initiation of physical on-site construction activities for the
remedial action selected or approved by the department at a facility .
. . . [MCL 324.20140(1)(a).]

Plaintiff initiated its cost-recovery action against defendant in November 2000,

within six years from the date that it was confirmed that defendant’s separate

release had comingled with plaintiff’s. The Attorney General, on behalf of the

MDEQ, argues that the Court of Appeals conclusion that the period ran from

November 1991, before plaintiff was even aware of defendant’s separate release,

was wrong. Therefore, the Attorney General intervened on behalf of the MDEQ

and filed this timely application for leave to appeal.

The Attorney General has the authority to represent the MDEQ’s interest in

challenging the Court of Appeals interpretation of the NREPA statute of

limitations. The MDEQ is conducting an ongoing investigation into the separate

release of hazardous substances for which defendant is liable at defendant’s

(…continued)
12
MCL 324.20102(m).

separate facility. There is no evidence in the record that there has been any

“initiation of physical on-site construction activities for the remedial action

selected or approved by the department” at defendant’s facility.13 It is notable that

plaintiff’s treatment facility was constructed to remediate the contamination

caused by plaintiff at plaintiff’s separate facility. It defies common sense to

commence the running of the period of limitations from the initiation of

construction activities at plaintiff’s facility, when those activities preceded any

confirmation of and perhaps even any actual comingling of hazardous substances

from defendant’s separate release and facility.

The majority fails to analyze the independent interest of the MDEQ in this

matter. Instead, it ignores it and suggests that the Attorney General’s authority to

intervene must be predicated on a losing party’s decision to appeal. This

reasoning ignores this Court’s prior case law that recognized that the interest of a

state department in the subject matter of a lawsuit justifies the Attorney General’s

participation in the suit on behalf of that department.

In Russell v Peoples Wayne Co Bank of Dearborn, 275 Mich 415; 266 NW

401 (1936), this Court held that the Attorney General could intervene on behalf of

the state banking commissioner in a matter involving agreements for the

liquidation of certain banks. The state banking commissioner had approved the

13
MCL 324.20140(1)(a).

agreements, but when a dispute later arose between the parties, the Attorney

General intervened on behalf of the banking commissioner. This Court rejected a

challenge to the authority of the Attorney General to intervene, stating:

[T]he suits at bar grew out of the mentioned agreements,
approved by the banking commissioner, and assertion of right by the
Reconstruction Finance Corporation as a creditor and, therefore, the
State, through its banking commissioner, with power over banks and
banking, had an interest in the subject-matter of the litigation.

The liquidation by agreement was consented to by the
banking commissioner and, inasmuch as liquidation of a State bank
is under control of the banking commissioner, when plaintiff sought
by the suit for the appointment of liquidating receivers rather than
under the approved agreements, the banking commissioner was
again a party in interest.

The attorney general not only had a right to intervene but to
move to dismiss the bills for want of jurisdiction in the court to
appoint a receiver. [Russell, supra at 418-419.]

As in Russell, I would hold that the Attorney General has the authority to

intervene and represent the interests of the MDEQ in this case. The majority’s

attempt to distinguish Russell on the ground that the Attorney General in that case

represented an “actual party” again misses the mark, because in this case the

MDEQ was an actual party once the Attorney General intervened.

The people, through the Legislature, have expressed in the NREPA a strong

interest in appropriate response activities with respect to releases of hazardous

substances14 and in the proper allocation of liability15 for such releases. With

14
MCL 324.20102(c) provides:
(continued…)

respect to the allocation of response activity costs, MCL 324.20102(f) provides that

“liability for response activities to address environmental contamination should be

imposed upon those persons who are responsible for the environmental

contamination.” The statute further provides at MCL 324.20126a(7) that the

“costs recoverable under this section may be recovered in an action brought by the

state or any other person.”

The MDEQ is charged with the enforcement of the NREPA.16 The

Attorney General, on behalf of the MDEQ, has standing to challenge the Court of

Appeals interpretation of the six-year statute of limitations at issue in this case.

The Court of Appeals holding that the limitations period commenced running

when plaintiff began construction of a treatment system fails to recognize that

plaintiff’s construction began before plaintiff was even aware of the release at

(…continued)

That it is the purpose of this part to provide for appropriate
response activity to eliminate unacceptable risks to public health,
safety, and welfare, or to the environment from environmental
contamination at facilities within the state.
15
MCL 324.20102(e) provides:

That the responsibility for the cost of response activities
pertaining to a release or threat of release and repairing injury,
destruction, or loss to natural resources caused by a release or threat
of release should not be placed upon the public except when funds
cannot be collected from, or a response activity cannot be
undertaken by, a person liable under this part.
16
MCL 324.20102(m).

defendant’s site and years before comingling of defendant’s release with the

plaintiff’s was confirmed by the MDEQ. The Court of Appeals interpretation of

the statute of limitations at issue undermines the MDEQ’s ability to enforce the

NREPA’s cost-recovery provisions against defendant.

III

Even though the specific issue of who qualifies as an “aggrieved party” was

not raised or briefed by the parties, the majority chooses this case to redefine and

limit who is an “aggrieved party” for the purpose of invoking appellate court

jurisdiction.17 The majority uses this case to expand the erroneous standing theory

that it adopted in Nat’l Wildlife, supra,18 by applying it to parties appealing from a

17
Even though the jurisdiction of the Court of Appeals is not at issue in
this case, the majority seizes this opportunity to also redefine who qualifies as an
“aggrieved party” under MCR 7.203(A), the court rule defining the jurisdiction of
the Court of Appeals. At issue in this case, however, is this Court’s jurisdiction
over appeals. This Court’s jurisdiction is governed by MCR 7.301(A). In relevant
part, MCR 7.301(A)(2) simply provides that “[t]he Supreme Court may . . . review
by appeal a case . . . after decision by the Court of Appeals.” The applicable court
rule thus provides no foundation for the majority’s holding in this case.
18
In Nat’l Wildlife, the same majority of four overruled 30 years of
precedent when it held that the Legislature may not confer standing on “any
person” under the Michigan environmental protection act (MEPA), MCL
324.1701 et seq. Under the majority’s Nat’l Wildlife decision, citizen standing is
controlled by a test the majority imported from federal law and that is premised on
federal constitutional provisions that do not exist in Michigan. As I stated in Nat’l
Wildlife, supra at 654:

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
(continued…)

trial court judgment. The majority requires that to have the right to appeal, a party

must be an “aggrieved party,” and to be “aggrieved”

a litigant must have suffered a concrete and particularized injury, as
would a party plaintiff initially invoking the court’s power. The
only difference is a litigant on appeal must demonstrate an injury
arising from either the actions of the trial court or the appellate court
judgment rather than an injury arising from the underlying facts of
the case. [Ante at 6.]

For this new test, the majority cites two inapplicable federal cases that address the

limitation on federal court jurisdiction imposed by the case or controversy

requirement of the federal constitution, art III, § 2. In Nat’l Wildlife, the same

majority superimposed the same inapplicable federal constitutional constraints on

the standing of Michigan citizens in state court actions. As I previously addressed

in Nat’l Wildlife, art III, § 2 constraints do not apply to state court jurisdiction.

See Nat’l Wildlife, supra at 660-661 (Weaver, J. concurring in result only.) This

is true at both the trial court and appellate court levels.

The majority’s redefinition of “aggrieved party” to require a “concrete and

particularized injury” imposes a higher threshold than this Court’s previous

articulations of “aggrieved party.” This Court has previously held that to be an

(…continued)
by undermining the Legislature's constitutional authority to enact
laws that protect natural resources. [Weaver, J., concurring in result
only.]

In this case, the majority further expands its judicial power, this time at the
expense of the power properly vested in the Attorney General as representative of
the executive branch and the people of Michigan.

“aggrieved party” simply requires that a party have some interest, “pecuniary or

otherwise,” in the subject matter of a case. See In re Critchell Estate, 361 Mich

432, 450; 105 NW2d 417 (1960). In re Critchell recognized that an interest may

be something other than pecuniary, for example, in cases involving the adoption of

a child. Id. at 449, citing In re Draime, 356 Mich 368; 97 NW2d 115 (1959). The

majority’s new test for invoking appellate jurisdiction unnecessarily heightens the

burden of all parties who pursue an appeal.

The majority’s decision severely erodes the authority of the Attorney

General to defend state interests in this Court. Without analysis, the majority

concludes that neither the MDEQ nor the people of the state of Michigan are

aggrieved by the decision of the Court of Appeals under the majority’s new test.

The majority implies that the people of Michigan and the MDEQ’s interests are

“tangential” and declares that despite the Attorney General’s timely and proper

intervention on behalf of state interests in this case, the Attorney General cannot

appeal to this Court unless a losing party also files a timely appeal. The majority

states:

To the extent one might read MCL 14.101 or MCL 14.28 as
allowing the Attorney General to prosecute an appeal from a lower
court ruling without the losing party below also appealing, and
without the Attorney General himself being or representing an
aggrieved party, the statutes would exceed the Legislature’s
authority because, except where expressly provided, this Court is not
constitutionally authorized to hear nonjusticiable controversies.
[Ante at 8-9.]

As explained in the preceding parts of this dissent, in the context of this case, the

people of Michigan and the MDEQ have clear and defined interests in the

outcome of this appeal. The interests of the people of Michigan and the MDEQ in

this case are sufficient under Michigan’s prior case law to make them “aggrieved

parties.” As discussed above, both the people of Michigan and the MDEQ have

some interest, pecuniary or otherwise, in the outcome of this case. See, e.g., In re

Critchell, supra at 450. Further, the Attorney General intervened in a timely

manner to represent those interests and has the statutory authority to “prosecute

and defend all actions in the supreme court, in which the state shall be

interested. . . .” MCL 14.28.

Yet, the majority fails to analyze or address the state’s interests in this case.

Instead, the majority opines that there is no “justiciable controversy” before this

Court because Federated did not appeal properly. Ante at 8. In so holding, the

majority overrules without any explanation Michigan’s longstanding precedent

that recognized the Attorney General’s broad authority to intervene, prosecute,

and defend matters of state interest in the Supreme Court.19

19
See, e.g., In re Certified Quesiton, supra; People v Johnston, supra;
Mundy, supra; Attorney General ex rel Lockwood, supra; Russell, supra.

In order to represent the interests of the people of Michigan or the MDEQ

in this litigation, the majority effectively requires the Attorney General to

convince another party, over whom the Attorney General has no control and who

the Attorney General does not represent, to pursue an appeal. There are many

reasons that a party might not pursue an appeal, and it is wrong to hinge the

defense of the interests of the people of Michigan and those of the MDEQ on the

decisions or strategies of another party. Moreover, it is wrong for the majority to

use this case to limit who is an “aggrieved party” for the purpose of invoking

appellate court jurisdiction, especially since the definition of “aggrieved party”

was neither raised nor briefed by the parties.

For these reasons, I dissent and would hold that the Attorney General has

the authority, on behalf of the people of Michigan and on behalf of the MDEQ, to

pursue this appeal.

Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly

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