In response to a Michigan Supreme Court ruling on Friday that lessens the ability of citizens challenge corporations polluting the environment, Jim Olson, an attorney for Michigan Citizens for Water Conservation, released the following statement:
The Supreme Court Clerk's office left a message this morning that it issued an opinion and order today. While Michigan Citizens for Water Conservation, and the Doyle and Sapp families reserve further comment after digesting the opinion and order in more detail, for the moment, it appears the four of the Justices --Justices Marksman, Taylor, Corrigan, and Young -- have put another nail in the coffin of citizen standing, and that Michigan's environment and individual and public rights have taken another severe blow at the hand of this Court. The Court now says it will require that any person bringing a lawsuit to protect our air, water, and natural resources, or the public trust in our waters, must allege and prove harm to waters, wetlands, or other environmental features on the Defendant polluter's property; i.e. standing has been used as a sword to cut-off or cripple the citizen suit to protect Michigan's environment, and to give Nestle and other businesses a license to destroy and pollute on their own property unless a citizen can show a specific interest in Defendant's property, such as use, aesthetics, recreation.
Nestle asked the Court to cripple the state's Michigan Environmental Protection Act ("MEPA"). And Nestle succeeded in damaging the rights of citizens to protect our water and water resources. The Court followed suit. It's decision is regressive, punitive, and illogical in the extreme. In 1963, citizens enacted a Constitution that mandates the legislature to pass laws to protect the environment as an important public interest to the health and welfare of people in the State. in 1970, our legislature passed a law, the MEPA, that granted citizens to maintain lawsuits against those who propose or act in ways that are likely to pollute, impair, or destroy the air, water or natural resources or the public trust. Why and how could an injured Plaintiff from Nestle's conduct not be able to maintain a lawsuit to protect all of the environment and water resources harmed by Nestle's pumping ? MCWC and the Doyles and Sapp families in the MCWC v Nestle case proved unreasonable harm from Nestles pumping. Once this has been shown, the law intends all harm can be stopped or controlled. For the Court to condone harm on a company's property is irrational. Such an approach ignores judicial restraint called for by the doctrine of separation of powers that is supposed to protect our constitution, the rights and interests protected by it, and the powers of the legislature to follow it. The approach by the Court condones the piecemeal, wholesale destruction, and ruin of Michigan's treasured and fabled water resources and the environment. Four justices have cast their vote in favor of big business and against individual property rights, citizens, our local governments and communities , and the waters, wetlands, and environment. In the bigger picture, these Justices have also cast their vote in favor of big business and squarely against all citizens and the community in which they live.
In addition, the Court's opinion fails to address the important water law issues before it, so critical to the people of Michigan, including groundwater, riparian, the public trust and future of the waters of the Great Lakes. The Court simply affirmed in part and reversed and remanded in part the Court of Appeals decision, not stating what was affirmed, but stating only that it has ruled on the MEPA standing issue, and remanded that to the trial court. In my mind, this means, Plaintiffs will go back to circuit court to (a) address standing in the wetlands and Osprey Lake on Nestle's property, and (b) request the trial court to explain how the unreasonable harm, which is not in dispute, constitutes an impairment under the MEPA to the riparian and public waters of the stream and, if (a) is established, to the wetlands and Osprey Lake on Nestle's property. Michigan Citizens for Water Conservation and individually harmed plaintiffs will continue to fight for Michigan's water and related water resources and the public trust.
It's time for all citizens to take standing, our air, water and public trust into their hands. The Constitution is of and for the people. These issues belong to the people. It is time for massive unified action, without regard to our politics, to demand respect for and protection of the environment by the Supreme Court, since that's what our Constitution and laws demand. If necessary, this means citizens should petition to amend the Constitution of the state to make it clear to the Court, that when the people declare the environment is of paramount concern and the legislature shall pass laws to protect it, they mean it. This includes the authority to enact citizen suits without regard to the artificial barriers erected by the Court. Such barriers destroy our heritage, our water and natural resources, and communities. These matters should be a first priority on the agenda for the people in the State, and particularly landowners and private property owners who live on lakes and streams or near industry, and those with an interest in conservation, the environment, and the future health of our communities and quality of life.
In solidarity of the rights of citizens to vindicate the public interest as declared by our State Constitution,
Yours,
Jim Olson
Attorney for Michigan Citizens for Water Conservation
In May of 2006, I gave a paper at the University of California at Santa Barbara. I have reproduced its abstract below.
If the abstract interests any of the movers and shakers who read this,tell me your mailing address. I will snail mail a copy to you to you, at no charge.
Willis A. (Bill) Frambach
waframbach@aol.com
When the Fifth Amendment Takings Clause
Intersects the Public Trust Doctrine,
Inconsistent Theories of Social Justice Collide
Willis A. Frambach, J.D.
Takings Conference May 12 & 13, 2006 at the University of California at Santa Barbara, hosted by Perry Shapiro, Ph.D., Professor of Economics
http://www.econ.ucsb.edu/conferences/takings06/agenda.html
Abstract
One view is that all human rights flow from the grace of the sovereign in the place where questions of rights arise. Another view is that human rights, such as those expressed in the U.S. Declaration of Independence, the French Declaration of the Rights of Man, the United Nations' Universal Declaration of Human Rights and the writings of numerous respected authors are generally accepted expressions of human rights that do not flow from the grace of any earthly sovereign, although a sovereign may acknowledge that such rights exist and may enforce them. Our founding fathers risked being hanged for treason when they declared boldly to George III that no sovereign is empowered to extinguish mankind's inalienable rights. Is that moral principle, which they imperiled their lives to assert, true today?
The public trust doctrine, as a means of providing, protecting, and assuring certain human rights that do not flow from the grace of any earthly sovereign, limits the power of the sovereign to convey, or to have conveyed earlier, as private property some types of property, and it limits landowners' uses of some properties, both irrespective of what documents of title say, imply, or omit.
Real property law in the U.K., the U.S.A., and the other former British colonies is based upon the concept that initially the king owned all of the land, outright. If that idea is valid, it follows that deeds, patents, or grants from the king or from a successor sovereign convey to private owners a "bundle of rights" to the property that includes the right to use it as the owner chooses, subject only to the current sovereign's police powers, notwithstanding contentions about the public trust doctrine.
This author poses, tests, and invites tests of the hypothesis that when the human rights that underlie the public trust doctrine and "property rights," based upon medieval English kings' assertions and force of arms, conflict, "property rights" must recede.
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Please take notice that there are sincere differences of opinion as to whether the human rights that underlie the Public Trust Doctrine are inalienable -- whether a sovereign's powers can actually extinguish human rights or can merely make human rights temporarily unenforceable.
For an example in another, unrelated context, did Hitler's use of power extinguish Jews' rights? Or did Hitler's power merely make Jews' rights unenforceable?
When human rights are concerned, is there only one measuring stick, or shall different measuring sticks be used, depending upon the situation?
Do the people have the right to have their governments preserve for them some of the values of this planet in its natural state, notwithstanding the fact that predecessor sovereigns have granted land titles that include the "right" of a private landowner to use the land he bought or inherited in any way he sees fit, irrespective of off-site consequences?
Who believes your answers to the above questions?