Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 Ge neral can appeal as an intervenor in this Court on behalf of th e people and a state agency when the named losing parties did not themse lves seek review in this Court. Notwithstanding the Attorney General’s broad stat utory 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 a ppeal, and because the Attorney General does not represent an aggrieved party for pur poses of this case, there is no longer a justiciable controversy. Under such ci rcumstances, the Attorn ey General may not independently appeal the Court of App eals judgment. We therefore dismiss this appeal.

I. Facts and Procedural History In 1988, Carl M. Schultz, Inc. (hereaft er 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 treat ment system began operation, and, in 1993, the DNR approved plai ntiff’s site investigation work plan.
In 1991, defendant Oakl and County Road Commission released petroleum on property adjacent to plaintiff’s property. In 1992, plainti ff began to suspect that some of this petroleum had migrat ed onto its property. By 1995, the DNR concluded that at least some of the petr oleum 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 Environmenta l Protection Act (NREPA),

2MCL 324.20101 et seq., for the added costs associ ated with the cleanup of petroleum contaminants that had orig inated 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 Appeal s affirmed. 263 Mich App 62; 687 NW2d 329 (2004). On behalf of th e people of the state and the Michigan Department of Environmental Quality (MDEQ) (the su ccessor to the DNR), which had never been a party in the trial cour t proceedings or in the appeal in the Court of Appeals, the Attorney General then f iled a timely application for leave to appeal in this Court as an intervening appellant. Pl aintiffs, however, did not file a timely application for leave to appeal even t hough they “lost” under th e 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 l eave to appeal in this Court after the deadline for filing an applica tion for leave to appeal had expired. Plaintiffs sought to avoid MCR 7.302(C)(3) (“[l]ate a pplications will not be accepted”) by designating the appeal as a cross-applica tion for leave to appeal. Plaintiffs’ “cross-application” fully supported the A ttorney 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 th e Attorney General

intervening appellant. Therefore, although plaintiffs referred to their application for leave to appeal as a cross-applicati on, it was actually an untimely application for leave to appeal. This is why we denied plaintiffs’ application.

3II. Standard of Review Defendant argues that the Attorney General lacks th e authority to intervene to appeal the judgment of th e 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 resu lted in a published opinion, where the parties were plaintiffs Federated Insurance Company and Carl
M. Schultz, Inc., and defendant Oakla nd County Road Commission, the Attorney General, representing the peopl e 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 miscons trued MCL 324.20140(1)(a), a statute that the MDEQ frequently litigates. Resolu tion 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

4of 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 appeal s, however, a similar interest is vindicated by the requirement that the party seeking a ppellate 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 alik e 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 with in 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 le gislating from the bench a new restriction on the Attorney General’s au thority to intervene. Nothing could be further from the truth. Our holding is fully supported by constitutional prin ciples and prior case law.

5aggrieved 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 part y plaintiff initially invoking the court’s power. The only difference is a litigant on a ppeal must demonstrate an injury arising from either the actions of the tria l court or the appellate court judgment rather than an injury arising fro m the underlying facts of the case. 5 With regard to the necessity of a justiciable contr oversy, 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 trad itionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoi dance of deciding hypothetical questions; the plaintiff who has su ffered real harm; the existence of genuinely adverse parties; the suffi cient ripeness or maturity of a

4 The dissent contends that the Atto rney General has standing because the MDEQ, the state agency that the Attorney General is rep resenting, is “interested in the proper enforcement of the NREPA . . . .” Post at 12. However, if an interest in the proper enforcement of a statut e were enough to confer standing, the Attorney General would always have st anding 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 pr oper enforcement of a statute has never before been thought su fficient 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).

6case; 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 proscriptiv e as opposed to prescriptive decision making. Perhaps the most critical elem ent 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 su ffered a “particularized” or personal injury. [Citation omitted.] [6] The Attorney General’s au thority to intervene is found in two statutes.

MCL 14.101 states: The Attorney General of the St ate is hereby authorized and empowered to intervene in a ny action heretofore or hereafter commenced in any court of the St ate 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 constitutiona l regime in which the judicial branch can be invested with extra-constitutional powers at the expense of the other b ranches, in particular th e executive. One need only be a casual student of government to recognize the extraordinary rarity of an institution of govern ment, such as this Court, choosing, on the basi s 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.]

7take any other action or step what soever that is had or possessed by any of the parties to such litigation. Similarly, MCL 14.28 states: The Attorney General shall pr osecute and defend all actions in the supreme court, in which th e 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 th e supreme court and shall perform such other duties as may be assigned to him; and the attorney general sh all also, when requested by the governor, or either branch of the le gislature, 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 c ourt 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 A ttorney General with the authority to prosecute, defend, and intervene in certain “actions.” But, this case ceased to be an “action” when the losi ng parties below (plaintiffs) failed to file a timely application for leave to appeal in this C ourt. Once plaintiffs ’ deadline for filing a timely application for leave to appeal e xpired, 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 appli cation for leave to appeal, there would obviously have been a justic iable controversy in which the Attorney General could have intervened. Consistent with the principles of appellate standing, where the Attorney General int ervenes solely to advocate a general position on the law, the intervention statutes on which the Attorn ey General relies c onfer on the Attorney General only a form of "statutory amicus,” not true party, st atus. Thus, if the Attorney General had sought to intervene in a timely filed appeal by a party with appellate standing—not to represent a clie nt that had suffered an adverse decision of a lower court but only to advance a perspective on the law—the Attorney (continued...)

8allowing the Attorney General to prosecu te an appeal from a lower court ruling without the losing party below also appea ling, and without the Attorney General himself being or representing an aggrieved party, the st atutes 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 thes e statutes such a reading would contravene an operative presumpti on 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 ar guing that the Attorney General should be allowed to appeal in this Court notw ithstanding 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 Atto rney General may properly play in an appeal in which he intervenes, the precondition for intervention is th at there must be a timely appeal by a party that has appellate st anding as outlined in this opinion.

8 See, e.g., Const 1963, art 3, § 8, which permits the legislative and executive branches of govern ment to request an opini on of this Court on the constitutionality of legislation not yet in effect.

9 Although the MDEQ might well ha ve 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 misconstruc tion of the statute. Moreover, no reason exists to (continued...)

9877 (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 hol ding the dissent would adopt.

In Mundy , a circuit judge was sued in circu it 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 argum ent that the Attorn ey General’s office could not defend a circuit j udge who had been sued. The Attorney General’s office represented an actual defendant party in that lawsuit.

In Russell , a receiver of the Detroit Bank er’s Company filed a lawsuit seeking to have liquidati ng receivers appointed for ot her banks. The Attorney General’s office intervened in the case and moved to dismiss the lawsuit. On appeal, the plaintiff argued that the A ttorney General should not have been permitted to move to dismiss the case b ecause 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 s ought to have receivers appointed. Again, the Attorney General’s office represented an actual party in the litigation.

(...continued) prevent the Attorney Gen eral from filing a lawsuit on behalf of the MDEQ once the MDEQ has suffered such an injury, e.g., is denied reimbursement costs.

10Each of these cases is inapposite because it presented a justiciable controversy wherein the Attorney General rep resented an actual party. In the case at bar, however, no justiciable controvers y exists and the Attorney General does not represent a party to the dispute. Mo reover, none of thes e cases cited by the dissent involved the Attorney General atte mpting 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 st ate and may appear on behalf of state parties. 10 Moreover, it is not incons istent with the Attorney General’s authority to intervene in “actions.” As previ ously explained, we merely hold that the Attorney General’s authority to intervene does not include the ability to appeal a nonjusticiable case. Given th e untethered language in the dissent, one has to wonder if there is a ny circumstance in which th e dissent would conclude that the Attorney General w ould 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 c ontention, 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 representi ng is aggrieved. Th is, however, is not such a case.

11Contrary to the dissent's contention, the issue of the A ttorney 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 argue d at oral argument, and it was briefed by the Attorney General a nd defendant in supplemental briefs. Finally, contrary to the dissent's cont ention, we are not e xpanding the standing theory; rather, our holding is consistent with our prior cas e law as cited in n 2 of this opinion.

V. Conclusion We conclude that there is no justicia ble controversy becau se the Attorney General does not represent an aggrieved party and because ne ither of the losing parties below chose to file a timely appli cation for leave to a ppeal. 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

12V S T A T E O F M I C H I G A N SUPREME COURT

FEDERATED INSURANCE COMPANY, Plaintiff-Appellees,
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 i nvolving cost recovery for e nvironmental contamination caused by defendant, Oakla nd County Road Commission. The majority’s holding imposes unprecedented and unsupportable lim itations on the Attorney General’s ability to defend the in terests 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 appella te jurisdiction of this Court. The question of what constitutes an “aggrieved party” was not raised or briefed by the parties. Ye t 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 p arty plaintiff initially invoking the court’s power. Th e only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate c ourt 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 seeki ng 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 a nd Environmental Protection Act (NREPA). 1 After the Court of Appeals rendered its d ecision, the Attorney General filed his motion to intervene on behalf of the peopl e of Michigan and the MDEQ. Within

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

2the period specified for appeals, 2 the Attorney General a ppealed the decision of the Court of Appeals in this Court. In response to the Attorn ey General’s applicati on, defendant Oakland County Road Commission challe nges 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 th e issues to be briefed: (1) whether the work initia ted in 1991 was an “interim response activity” that did not tri gger the statute of limitations provision set out in MCL 324.20140( 1)(a) rather than a remedial action at that must first be approve d 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 unrelat ed release of hazardous substances. [472 Mich 898 (2005).] No reference was made in this Court’s gran t order regarding whet her 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 app eal 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 C ourt denied. 472 Mich 898 (2005).

3authority of the Attorney Ge neral to maintain this app eal 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 in tervention and timely appeal, the Attorney General had the au thority to represent the pe ople of Michigan and the MDEQ because both parties are “aggrieve d parties” within the traditional understanding of the term. With its decisi on today, however, the majority not only imposes unprecedented limits on the authority of the Atto rney General to perform his statutory obligations, it also redefine s and narrows who will be deemed an “aggrieved party” for the purposes of i nvoking appellate court jurisdiction. For the reasons below, I would reverse th e decision of the Court of Appeals because the Attorney Gen eral 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).
I The law enacted by the Legislature is very clear regarding the power of the Attorney General to litigate on behalf of th e interests of the people of Michigan. Pursuant to MCL 14.28, th e Attorney General may, when in his own judgment the in terests of the state require it, intervene in and appear fo r the people of this state in any other court

(...continued)

4 MCL 14.101.

4or 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, a nd the Attorney General shall have the same right to prosecute an a ppeal, 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 th is majority, has br oadly construed the authority of the Attorney Ge neral to litigate on behalf of the people of the state. In

5 MCL 14.28 states in full: The attorney general shall pros ecute and defend all actions in the supreme court, in which the stat e shall be interested, or a party; he may, in his discretion, designa te one of the assistant attorneys general to be known as the so licitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such oth er duties as may be assi gned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and ma y, when in his own judgment the interests of the state require it, in tervene 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 peopl e of this state may be a party or interested.

6 MCL 14.101 states in full: The Attorney General of the St ate is hereby authorized and empowered to intervene in a ny action heretofore or hereafter commenced in any court of the St ate 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 rehearing or to take any other action or step what soever that is had or possessed by any of the parties to such litigation.

5re 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, incl uding 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 ha ve been that the intervention must advance a state, rather than a merely local, interest, 7 and the Attorney Gen eral’s intervention must not be “clearly inimical to the public interest . . . .” 8 But now this majority ignores its own precedent and the express stat utory authority pr ovided by MCL 14.101 that permits the Attorney Ge neral to intervene on behalf of a state interest at any time. The majority legislates from th e bench a new restriction on the Attorney General’s authority to intervene by prem ising 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 involve s 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).

6intervened and filed a motion to dismiss the case on the grounds that the judge was acting in his official capac ity when the allegedly libelous statement was made. The party alleging libel against the j udge challenged the Attorney General’s authority to intervene to address a purely legal que stion. This Court in Mundy,
supra at 451, affirmed the authority of th e Attorney General to intervene and stated: Certainly if the people of the Stat e 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 comp lained of were judicial acts. In this case, the legal issue involves th e proper interpretation of a statute of limitations within the NREP A. The resolution of this question affects the proper allocation of costs for response activities fo r environmental cont amination. The Legislature has very clearly provided th at a person who causes environmental contamination should pa y for its cleanup. MC L 324.20102(f) provides that “liability for response activities to address environmental contam ination should be imposed upon those persons who are res ponsible for the environmental contamination.” The logic of Mundy is decisive in this cas e: Because the people of Michigan through their Legislature ha ve expressed an in terest in the proper allocation of response activity costs for e nvironmental cleanup, it is “too narrow a view” to conclude that th e people would not also be interested in the proper

(...continued)

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

7interpretation of a statute that affects the a llocation of those cost s. The majority’s attempt to distinguish Mundy on the ground that the Atto rney 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 Ge neral may intervene on behalf of the people of Michigan to seek a prop er interpretation of state law.
II In addition to having the authority to intervene on behalf of the people of Michigan, the Attorney Gen eral has the authority to in tervene in this matter on behalf of the MDEQ. The MDEQ is a departme nt 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 prosecu te 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 litig ate in matters of state interest necessarily includes the authority to litigate “on behalf of the state’s political subdivisions in matt ers 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 e xpressly provides that the Attorney General may commence a civil action “on behalf of the state” seeking relief,

8including “[a]ny other relief necessary for the enforcement of this part.” MCL 324.20137(1)(k). 9 The majority’s opinion, howev er, 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 aut horized by law, the attorney general may, on behalf of the stat e, commence a civil action seeking 1 or more of the following: (a) Temporary or permanent in junctive relief necessary to protect the public health, safety, or welfare, or the environment from the release or threat of release. (b) Recovery of state respons e activity costs pursuant to section 20126a. (c) Damages for the full value of injury to, destruction of, or loss of natural resources resulti ng from the release or threat of release, including the reasonable co sts 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 pers on 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 sh all be based upon the seriousness of the violation and any good faith efforts of the p erson 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 admini strative order issued (continued...)

9The MDEQ has a tangible interest in th e resolution of this case. In 1995, the MDEQ notified defendant, Oakla nd County Road Commission, that the department had identified and confirmed a release of “free product” 10 from an underground storage tank on defendant’s propert y 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 h azardous substances associated with the plai ntiff’s release at the CMS facility through approximately

(...continued) pursuant to section 20119, including exemplary damages pursuant to section 20119. (h) Enforcement of an administra tive order issued pursuant to section 20119. (i) Enforcement of information gathering and entry authority pursuant to section 20117. (j) Enforcement of the reporti ng 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 subs tance 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 th e 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 requi rements of section 20120a(1) or (17) or the cleanup criteria fo r unrestricted residential use under part (continued...)

10June 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 lett er states that the CMS treatment system encountered hazardous substances again. Aft er an investigation by the department staff, it was confirmed that the hazardous substa nces appearing in CMS’s treatment system w ere different in kind from that which had been released by the plaintiff. The investigation conf irmed that the new hazardous substances that had appeared in plain tiff’s treatment system derived from a separate release from defendant’s facility. The record does not suggest that the MD EQ’s investigation of the separate release from defendant’s facility is comple te. Indeed, the letter recommends that several actions be taken by defendant to address the hazardous substances, and that remedial action for the confirmed Ap ril 5, 1991, release at the defendant’s facility be continued. The letter recomme nds that remedial ac tions 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 ma y be required at [defendant’s] site.” In other words, the MDEQ ha s an interest in ongoing inve stigations and remediation of environmental contamina tion from defendant’s facility.

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

11The 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 activ ity lawfully incurred by the state relating to the selecti on and implementation of response activity . . . . (b) Any other necessary cost s of response activity incurred by any other person consistent with ru les 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 substan ces into the environment at defendant’s facility in April 1991, but that the release from d efendant’s facility did not appear in plaintiff’s treatment system until Nove mber 1994. Under the NREPA, defendant is jointly and severally liabl e for the costs asso ciated 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).

12The Court of Appeals, however, conc luded that this cost-recovery action against defendant was barred by the statut e of limitations because more than six years had passed since plaintiff began c onstruction of its treatment system in November 1991. The NREPA statute of lim itations at issue provides that the period of limitations [f]or the recovery of response activ ity costs and natural resources damages pursuant to section 20126a(1)(a), (b), or (c), [is] within 6 years of initiation of physical on-s ite construction activities for the remedial action selected or approve d 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 da te 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 Cour t of Appeals conclusion that the period ran from November 1991, before plainti ff 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 ha s the authority to represen t the MDEQ’s interest in challenging the Court of Appeals int erpretation of the NREPA statute of limitations. The MDEQ is conducting an ongoing investigation into the separate release of hazardous substances for whic h defendant is liable at defendant’s

(...continued)

12 MCL 324.20102(m).

13separate facility. There is no evidence in the record that there has been any “initiation of physical on-site constr uction activities for the remedial action selected or approved by the dep artment” at defendant’s facility. 13 It is notable that plaintiff’s treatment facility was constr ucted to remediate the contamination caused by plaintiff at plaintiff’s separat e facility. It defies common sense to commence the running of the period of limitations from the initiation of construction activities at plaintiff’s fac ility, when those ac tivities preceded any confirmation of and perhaps even any act ual comingling of hazardous substances from defendant’s separate release and facility. The majority fails to an alyze the independent interest of the MDEQ in this matter. Instead, it ignores it and suggests th at the Attorney Gen eral’s authority to intervene must be predi cated on a losing party’s d ecision to appeal. This reasoning ignores this Court’s prior case la w that recognized that the interest of a state department in the subject matter of a lawsuit justifies th e 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 th e Attorney General could intervene on behalf of the state banking commissioner in a matter involving agreements for the liquidation of certain banks. The stat e banking commissioner had approved the

13 MCL 324.20140(1)(a).

14agreements, but when a dis pute later arose between th e parties, the Attorney General intervened on behalf of the ba nking commissioner. This Court rejected a challenge to the authority of the Atto rney General to in tervene, 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 Corporati on as a creditor and, therefore, the State, through its banking commissi oner, 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 co mmissioner, 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 ha d 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 in terests of the MDEQ in th is case. The majority’s attempt to distinguish Russell on the ground that the Attorn ey General in that case represented an “actual party” again misses the mark, b ecause in this case the MDEQ was an actual party once th e Attorney Gen eral intervened. The people, through the Legi slature, have expressed in the NREPA a strong interest in appropriate response activities with respect to releases of hazardous substances 14 and in the proper allocation of liability 15 for such releases. With

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

15respect to the allocation of response activity costs, MCL 324.20102(f) provides that

“ liability for response activities to address environmental contam ination should be imposed upon those persons who are res ponsible for the environmental contamination.” The statute furth er 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 statut e of limitations at issue in this case. The Court of Appeals holding that th e limitations period commenced running when plaintiff began constr uction of a treatment system fails to recognize that plaintiff’s construction be gan before plaintiff was ev en aware of the release at

(...continued) That it is the purpose of this p art to provide for appropriate response activity to eliminate unaccep table 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 th e 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).

16defendant’s site and years before comi ngling 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 underm ines the MDEQ’s ab ility to enforce the NREPA’s cost-recovery provisions against defendant.
III Even though the specific issue of who qua lifies as an “aggrieved party” was not raised or briefed by the parties, the ma jority chooses this case to redefine and limit who is an “aggrieved party” for the purpose of invoki ng 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 C ourt of Appeals is not at issue in this case, the majority seizes this opport unity to also redefine who qualifies as an “aggrieved party” under MCR 7.203(A), the c ourt 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 C ourt of Appeals.” The applicable court rule thus provides no foundation for th e majority’s holding in this case.

18 In Nat’l Wildlife, the same majority of f our overruled 30 years of precedent when it held that the Legi slature may not c onfer standing on “any person” under the Michigan environm ental 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 th at 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 "j udicial 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...)

17trial 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 su ffered a concrete and par ticularized 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 cas es that address the limitation on federal court jurisdiction imposed by the case or controversy requirement of the federal cons titution, 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 appl y 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 “aggrie ved party” to require a “concrete and particularized injury” imposes a higher threshold than this Court’s previous articulations of “aggrieved p arty.” This Court has previ ously held that to be an

(...continued) by undermining the Legislature's c onstitutional 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 th e Attorney General as representative of the executive branch and the people of Michigan.

18“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 ex ample, in cases involving the adoption of a child. Id. at 449, citing In re Draime , 356 Mich 368; 97 NW 2d 115 (1959). The majority’s new test for invoking appellate jurisdiction unnecess arily heightens the burden of all parties who pursue an appeal. The majority’s decision severely erode s the authority of the Attorney General to defend state interes ts in this Court. Wit hout analysis, the majority concludes that neither the MDEQ nor th e people of the state of Michigan are aggrieved by the decision of the Court of Appeals under th e 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 Atto rney General cannot appeal to this Court unless a losing party also files a tim ely 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 p arty below also appealing, and without the Attorney General hi mself 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 h ear nonjusticiable controversies. [ Ante at 8-9.]

19As 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 Attorn ey General intervened in a timely manner to represent those interests and has the statutory author ity 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 add ress 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 explan ation 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 re l Lockwood, supra; Russell, supra

.

20IV In order to represent the interests of the people of Michigan or the MDEQ in this litigation, the majority effectiv ely requires the Atto rney General to convince another party, over whom the A ttorney 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 “aggr ieved party” for th e 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

21