The environmental community will not be sitting on the sidelines when "standing" under the Michigan Environmental Protection Act ("MEPA") is at stake.

The National Wildlife Federation (NWF) was found to lack "standing" under MEPA in the Marquette County Circuit Court. The Circuit Court ruling was reversed when the Court of Appeals confirmed that MEPA explicitly empowered "any person" to file suit.

An alarm then echoed throughout the environmental community when the Michigan Supreme Court agreed to entertain an appeal of this case. The Supreme Court, in a decision issued in late July, focused on whether the Legislature had constitutional authority to authorize "any person" to file this claim.

Generally, courts will reject claims from persons not having suffered specific "particularized" harm. Only a person directly affected would typically have "standing" to file. This well-conceived principle has been developed over the ages.

If every person could sue over prison funding, a tax regulation or a park maintenance budget, then governmental agencies would be buried in litigation. And so would the courts. Accordingly, the courts have a stake in scrutinizing the "particularized" harm in every case. If the harm sustained by one is sustained by all, then it's not "particularized," and the case will be dismissed for a lack of "standing."

Why, then, is the environmental community up in arms when "particularized" harm might be required for standing under MEPA?

Here's why.

Environmental toxins waft randomly through Michigan's airstream, percolate in our ground water and flow in rushing streams. The U.S. Department of Health & Human Services identifies over 200 carcinogens on the loose. The victims claimed by these toxins can claim "particularized" harm. Their "standing" is beyond reproach. They, however, learn to surrender autonomy to the medical community, to endure nausea, fatigue, examinations and grief-ridden hospital visits, all the while hoping not to hear the words "massive reoccurrence." They cultivate the courage to lie under the crosshairs of photon-emitting radiation tubes. They foster a renewed appreciation for life's simple pleasures. But vindicating their loss in court is not always the best use of their time.

MEPA contemplated this. It empowered "any person" to file a MEPA claim. And why not? After all, "any person" in Michigan is living downstream. Michigan is not just a geographical destination or political unit. We consume Michigan products. We bathe in her waters and inhale her air currents. Her products fill our veins, infuse our lungs and drench our pores. Our tissues become living scrolls inscribed with Michigan's products. We cannot just occupy this state and count our possessions. Rather, Michigan occupies us. We become possessed. We do not just live in this state. In a very real sense, Michigan lives in us.

The Supreme Court found that several NWF members had suffered "particularized" harm. It found NWF had standing. Thus, it never reached the ultimate constitutional issue on whether the Legislature could empower "any person" to bring a MEPA claim. The Supreme Court allowed the claim to proceed.

The four conservative justices, however, offered a stern warning that the claim of just "any person" would be rejected in the future. The composition of future Supreme Courts will determine MEPA's fate. Justice Marilyn Kelly unequivocally stated, in her separate Opinion, that "any person" should be authorized to file a MEPA claim.

A failure of standing under MEPA more specifically represents a failure of imagination. The threat of an enraged gunman in a crowded theatre is not "particularized." Fear is commonly shared by everyone in the room. Even the four conservative justices would honor the standing of "any person" in the theatre. Visualizing the ever-present environmental threats confronting "any person" requires more imagination.

It will be a sad day for Michigan's natural heritage if the four justices triumph in requiring "particularized harm" for a MEPA claim. This ruling would perversely enable the most wanton polluters to elude responsibility. If the next-door neighbor fills your home with toxins, you would have "particularized" harm and also clear "standing." But if the shifting winds sweep pollutants from a towering smokestack over the entire state of Michigan, then no one would have "particularized" harm. Every person would be similarly affected, and thus no one would have standing.

The old adage, "solution to pollution is dilution," never rang truer.

John F. Rohe <john@rohemail.com> practices law in Petoskey, Michigan. He filed an amicus brief in this case on behalf of Camp Quality, a camp and support structure for children with cancer.