Former FLOW intern Courtney Hammer connects the dots between legal standing under the Great Lakes Compact and the public trust doctrine
Some gifts come after the lights and music of the holiday season drift into the snowy weeks of the New Year. We at FLOW are delighted to share a gift just sent to us from Courtney Hammer, our first legal intern, who spent the summer of 2014 here in Traverse City helping us research law and policy on Line 5, the emerging Detroit water-shutoff crisis, Great Lakes water issues like the Waukesha “straddling community” diversion, fracking and excessive water loss, and on FLOW’s groundbreaking advancement of the public trust doctrine and principles for the Great Lakes and watersheds in the 21st century.
Courtney went on to graduate from the Michigan State University College of Law, where she also was Notes Editor at the Michigan State Law Review. She now works in Florida. To our great surprise, she just sent us a copy of the publication of her in-depth article recently published by Michigan State Law Review: Standing Under the Great Lakes Compact: A Broad-Based Argument Infused with Public Trust Principles for those with Diversion Aversion.[1]
Courtney offers an important contribution to the legal literature on standing—the rights of citizens who are “aggrieved” through actual or threatened harm to interests in or uses of the Great Lakes—after the first decade of the diversion ban, exceptions, and bottled water exports under the Great Lakes Compact. It’s very gratifying for us at FLOW that Courtney first learned as our intern about the Compact and the public trust doctrine, a body of law that protects the rights of all citizens, as beneficiaries, to demand that governments protect the Great Lakes and all waters that flow through or life from harm or private control now and for future generations.
The Compact authorizes “aggrieved persons” to appeal to the courts when a decision made by the Council of Great Lakes Governors or Regional Body violates the diversion ban or other provisions of the Compact. If citizens cannot participate and appeal to the courts when things go awry and the future of the Great Lakes is threatened, they cannot very well exercise their rights to force government to comply with its duty to protect the paramount public trust interests shared by all of us.
What Courtney has done is connect the “aggrieved person” standard for standing, sometimes construed narrowly against citizens, with the public trust doctrine in the Great Lakes. It is well established that the waters of the Great Lakes Basin are impressed with this primary protection. The Supreme Courts of all eight Great Lakes states have said so for over 100 years. The U.S. Supreme Court said so in 1892 in prohibiting the transfer of nearly one square mile of Lake Michigan to a railroad company. The Compact says so through a finding that the waters of the Great Lakes Basin are a “precious resource held in trust for the benefit of citizens.”[2]
Jim Olson, President and Founder
If these waters are subject to the public trust doctrine and citizens’ right to protect themselves and these waters from impairment or transfer for private gain, then why, she asks, shouldn’t the “aggrieved person” standard for standing be as broad as the rights to protect the public trust in the Great Lakes? After careful analysis of the law and the Compact in the context of a world water crisis, Courtney concludes that an “aggrieved person” includes a citizen whose rights in water for drinking, swimming, boating, navigating, and bathing are covered by the public trust doctrine. The Compact is entirely about protecting the Great Lakes. A person who is a legal beneficiary under the public trust doctrine should have standing to protect the public trust as an “aggrieved person.”
Courtney, we congratulate you, as well as our FLOW supporters and readers of our writings, legal reports, and articles. It is heartening to realize that our work spreads out like the ripples from a stone thrown into a lake, concentrically towards circumscribing and protecting the Great Lakes as common waters for all. Courtney’s article demonstrates how our shared efforts to protect the Great Lakes work together for the common good. Thank you, Courtney. Thank you, supporters. (P.S. Full disclosure: I’m doubly thankful and proud because Courtney is my niece).
[1] Courtney Hammer, Standing Under the Great Lakes Compact: A Broad-Based Argument Infused with Public Trust Principles for those with Diversion Aversion, 2018 Mich. St.. L. Rev.251 (2018).
[2] Great Lakes Compact, Pub. L. No. 110-342, Sec. 1.3(1) (a).
