Editor’s note: FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today’s thoughts are from FLOW’s board chair, Skip Pruss.
“We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.” — Ban Ki-moon, Secretary-General of the United Nations, 2011 Address
It’s time that we better manage our natural resources by broadly applying the Public Trust Doctrine.
Our water, air, and other public resources are facing multiple threats and unprecedented challenges. The threats to our environment are complex and systemic, and current government efforts are inadequate and ineffective. The public trust doctrine provides government with a framework to identify, comprehend, and address environmental threats at their root cause.
Last week at World Economic Forum (WEF) in Davos, Switzerland, political and business leaders, social activists, and philanthropy came together to assess the current state of the world and prioritize problems and solutions.
To inform the discussions of the attending global elite and set the agenda, a series of reports issued including Harnessing the Fourth Industrial Revolution for Life on Land and The Global Risk Report 2018. The former indicates that a survey of earth systems science finds that stresses on the planet’s environmental systems have worsened considerably in the last 25 years. The Global Risk Report – which has measured and categorized global risk annually for the last 13 years – found that environmental challenges from water scarcity, climate change, biodiversity loss, and pollution of air, soil and water now pose the greatest global dangers in terms of both potential catastrophic impacts and imminent threats.
The WEF warns that governments thus far are ill-equipped to respond to complex interactions and systemic threats that can quickly cascade into calamitous and costly events.
In the Great Lakes Region, the WEF’s warnings are validated by new emerging science:
- Just published research has found the presence of neonicotinoid insecticides – associated with bee mortality – in 10 major tributaries to the Great Lakes.
- Ubiquitous microplastics and pharmaceutical residues are disrupting aquatic ecosystems.
- Fecal bacteria from failing septic systems have been found in nearly all the river systems draining Michigan’s lower peninsula.
- The Department of Health and Human Services warns that rising temperature and climate change in Michigan will result in more flooding, stormwater overflows, erosion, nutrient loadings, harmful algal blooms, and water-borne diseases.
A broader approach to address these growing systemic threats is needed; one that focuses on the public interest and on protecting human health and the environment as a fundamental guiding principle.
The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our wellbeing and must be protected from impairment and degradation.
Our nation’s highest courts have long embraced the public trust doctrine as an overarching legal principle. In a landmark case involving Lake Michigan, the United States Supreme Court spoke unequivocally to government’s fundamental duty to protect public trust resources:
“The State can no more abdicate its trust over property in which the whole people are interested like navigable waters and the soils beneath them…than it can abdicate its police powers in the administration of justice and the preservation of peace.”
The Michigan Supreme Court has found that the doctrine establishes a “high, solemn and perpetual duty” of proactive environmental stewardship. The protections afforded by the public trust doctrine are recognized by Michigan’s Constitution, which states: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.” Wisconsin’s highest court has found that the public trust doctrine “requires the law-making body to act in all cases where action is necessary, not only to preserve the trust but to promote it,” and has applied the doctrine to protect public rights in sailing, rowing, canoeing, bathing, fishing, hunting, skating, and “scenic beauty.” California’s highest court has found that the doctrine demands that the best science must inform government’s responsibility to protect public trust resources and that prior governmental decisions must even be reexamined in light of new scientific knowledge if such information indicates public trust interests are affected.
The Public Trust Doctrine at Work
Our nation’s courts have been clear and unambiguous, stating repeatedly that the public trust doctrine creates an affirmative legal duty to protect public resources from degradation and impairment. So how might government apply the public trust doctrine to address complex and challenging environmental threats?
The doctrine operates as a shield to prevent activities that impair the public’s interest in public trust resources or conveys public rights in public trust resources to private parties. But beyond that, the public trust doctrine also empowers local, state and national governments to proactively manage and supervise activities that threaten public resources.
It provides, for instance, government with legal authority to require septic systems to be inspected and repaired if they are failing. If fish or aquatic resources are threatened by harmful wastes or chemicals, government is empowered to stop the pollution at its source. When it was found in the 1980’s that the operation of the Ludington Pump Storage Facility killed large numbers of fish in Lake Michigan, the then attorney general asked the courts to require measures that abated the fish mortality. The Michigan Court of Appeals stated, “Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.”
Similarly, Attorney General Bill Schuette could bring and action to close Line 5, the 65-year-old oil pipeline crossing the Straights of Mackinaw, because it presents a known catastrophic risk to public trust resources and waters of the Great Lakes.
The public trust doctrine could be used to address climate change by requiring utilities to transition to available, low-cost, zero-carbon energy resources. Because clean energy is now widely acknowledged to be the energy source of the future, there is no good reason to allow the continued loading of acid gases, heavy metals, and carbon pollution into our Great Lakes, rivers and streams.
The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious. The doctrine could provide a means of directly countering the present actions of the federal government to dismantle environmental laws and regulations. The doctrine can also enable communities to maintain high standards for the protection of natural resources and environmental values while being proactive in preventing problems before they arise.
The public trust doctrine is uniquely compelling as a means to address large-scale complex problems. With so much at stake, a broad application of the public trust doctrine is needed now.