HEALTH & ENVIRONMENT :: AUGUST 18, 2004

Protect Michigan's water and air: Dump Justice Markman

It shouldn’t take a rocket scientist — or even a political scientist — to remind us that there are three branches of government in the United States. and Michigan. But every now and then, it takes an outrageous decision by the third and least-monitored branch, the courts, to rouse voters to action.

In this case the crime against common sense and democracy was committed by a radical right-wing majority of four on the Michigan Supreme Court. Meeting in the posh new Supreme Court building just a few blocks west of our Capitol, these so-called jurists told the people of Michigan a few weeks ago that the rights of impersonal corporations supersede those of human beings — and that another branch of government, the legislature, has no business meddling on behalf of the people who elected them to secure a clean environment.

How far we’ve come since the glory days of 1970.

That was the year a determined Michigan citizen movement drove the state lawmakers of the day to enact a national landmark — the Michigan Environmental Protection Act. Realizing that corporate and political pressure often thwarted state officials from enforcing anti-pollution requirements, the law almost literally deputized every citizen of the state to enforce those laws.

MEPA, as it has always been known, provided any citizen “standing” to bring a suit to prevent or halt pollution, impairment or destruction of our precious natural resources. Previously, a citizen had to show “injury in fact” in order to even get a court’s attention. MEPA essentially embodied the view that all citizens ultimately have a stake in safe drinking water, lush forests and healthy Great Lakes, even if they’re not immediately affected.

Apparently that disturbed the current state Supreme Court majority, including one justice who is up for re-election this year, Stephen Markman. Appointed by former Gov. John Engler, that noted friend of the environment, Markman authored one of the most ideological, misbegotten opinions of recent times. Released at the end of July, this opinion defies belief.

Markman’s opinion illogically and in the face of the historical record suggests that a law like MEPA can snarl the courts in disputes over virtually anything. “Absent a particularized injury,” Markman wrote, “there would be little that would stand in the way of the judicial branch becoming intertwined in every matter of public debate.” Right, Stephen. Have you counted the number of MEPA lawsuits? Has it ever occurred to you that citizens have to pay attorneys to bring MEPA actions, and that very few lawyers are willing to donate their time? Maybe you’re not aware of the fact that most citizens don’t have tens of thousands of dollars at their disposal — unless they’re the friends or executives of fat cats who pollute.

A clue to Markman’s extremism is his citation of an assertion by U.S. Supreme Court Justice Antonin Scalia (at the time a law professor), to whom we owe the experiment of President George W. Bush. Scalia cleverly wrote that the courts exist to protect minorities from the abuse of the majority — so if the public hates pollution, the courts must interpret standing narrowly, because the mob might prevail in overwhelming the ability of polluters to despoil.

Justice Betty Weaver, an independent-thinking Republican, looked at Markman’s reasoning critically in a separate opinion. Saying Markman’s thoughts “utterly ignored” the 1963 Michigan Constitution, which declares conservation of “paramount public concern,” Weaver 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 the Michigan Legislature meant what it said when it allowed ‘any person’ to bring an action in circuit court to protect natural resources from likely or actual harm.”

It is little consolation that Markman and his kin on the court decided that the National Wildlife Federation, in the litigation involved in the suit, met the “injury in fact” test. They’re laying the groundwork for defying the Legislature and shutting the public out of actions to stop the mad destruction of our natural resources.

What Markman and his ultra-conservative pals are saying is that it doesn’t matter if a state agency screws up and issues an illegal or unwise permit to poison. It doesn’t matter if a corporation is lawlessly polluting, impairing or destroying our commonly held natural resources, an endowment we are duty-bound to pass onto our children and grandchildren. All that does matter is that the Legislature, the people’s representatives, have no business expanding access for the people to the courts to challenge the unfettered right of the wealthy and powerful to do whatever the heck they want to do to our environment. Provided the privileged elite can find an appropriate flawed statute or corrupted public official on which to hang their legal case, they should be liberated to proceed.

If that’s what Justice Stephen Markman thinks, he has no place on Michigan’s Supreme Court. The odds of defeating him in November are long, but the risks of leaving him on the Michigan Supreme Court to continue sanctioning the squandering by polluters of our precious heritage are far greater.

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