What Are Harmful Algal Blooms?
Harmful algal blooms (HABs) represent a grave systemic threat to our waters, underscoring the inextricable connection between water-energy-food and climate change, and the need for comprehensive and holistic policies and regulations. The slimy green algae excrete toxins that threaten our drinking water, fish populations, and water recreation.
Urban, industrial, and agricultural phosphorus runoff combine to cause HABs. There are over 400 dead zones worldwide, including in Green Bay, Saginaw Bay, and Lake Erie in the Great Lakes. These worsening ecological crises underscore that our current regulatory framework is not adequately addressing this severe problem; we need an overarching policy framework like the public trust and commons that is comprehensive enough to target the breadth of nonpoint source pollution.
Lake Erie’s Critical Problem
In 2011, Lake Erie experienced an unprecedented harmful algal bloom (HAB) that covered most of its western basin and created a “dead zone” the size of Delaware and Rhode Island combined. In August 2014, this endemic problem resurfaced again when microcystin toxins from a HAB showed up in drinking water tests, causing a state of emergency that left 400,000 people in the greater Toledo area without a municipal water supply for three days.
Nutrient pollution is not new to Lake Erie and the rest of the Great Lakes; however, the root causes of this phosphorus loading have changed. As early as the 1950s, municipal sewage treatment plants were the primary sources of pollution. Citizens responded by demanding the regulation of these point sources of pollution with the passage of the Clean Water Act (CWA) in 1972. Phosphorus loadings, in turn, diminished to less than half of their 1970s peak, and were greatly reduced through the mid-1990s. While clearly successful in reducing point-source pollution, the CWA failed to adequately address the increasing harm of nonpoint pollution sources from agricultural and urban runoff.
The states bordering western Lake Erie and Ontario agreed to reduce phosphorus loadings to western Lake Erie by 40 percent between 2015 and 2025, but are falling well short of that goal.
Solving HABS with the Public Trust
Since 2011, FLOW has advanced public trust principles with the International Joint Commission (IJC) -- the bilateral agency founded in a 1909 treaty to help manage the Great Lakes and boundary waters of the U.S. and Canada -- to solve Basin-wide threats, including Lake Erie’s nutrient pollution. In part influenced by FLOW’s work, the IJC issued its final Lake Erie report in February 2014, urging state and provincial regulators in the Great Lakes Basin (Michigan, New York, Ohio, Pennsylvania, and Ontario) to apply the public trust framework “as an added decision-making tool in policies, permitting and other proceedings” to address harmful algal blooms.
The IJC’s inclusion of the public trust framework in its final 2014 Lake Erie report was a major milestone for FLOW. Existing public trust laws are currently being violated because HABs impair water quality and interfere with protected public water uses of swimming, drinking, fishing, and navigation. By combining these existing legal strategies, agencies, and courts, if necessary, we could establish enforceable nonpoint source phosphorus allocations that protect our common waters.
What Now?
It was good news in March 2018 when the Ohio EPA designated a thousand square miles of the western basin of Lake Erie in summer “impaired” under the Clean Water Act (CWA). The United States EPA and Ohio EPA were about to be slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters. The Environmental Law and Policy Center (“ELPC”) out of Chicago and its team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie.
While ELPC will see to it that Ohio EPA’s and the feds’ feet are held to the fire, the CWA process for setting phosphorus reduction targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?
There’s a better option. The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations.
The United States Supreme Court and every state in the nation recognize the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs.
The public trust doctrine prohibits impairment of Lake Erie and foot-dragging like the failure to take swift definitive action against corporate farms and others that are the combined source of this wholesale destruction of Lake Erie.
Citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by persuading a court to order those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie.
Michigan previously declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless, of course, Michigan wants to join as party-plaintiff in bringing this claim forward.
Because governments have already conceded the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.
Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility, after the court takes more immediate action to protect the public trust. Fairly allocating the joint liability of defendants is not and should not bar a court order that compels immediate actions to reduce phosphorous loading in Lake Erie.
This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.
The time for judicial action and supervision under the public trust doctrine is now.
