Tag: Climate Change

Breaking the Cycle of Great Lakes Ruin and Recovery

Published on December 4th, 2019 by FLOW Editor - Blog Posts, News

Above photo: Jane Corwin, US Commissioner/Chair of the International Joint Commission, speaks at a public hearing in Traverse City on July 24, 2019. Photo by Rick Kane.

By Liz Kirkwood

Editor’s note: FLOW Executive Director Liz Kirkwood was recently appointed to be a member of the International Joint Commission’s Great Lakes Water Quality Board.

Liz Kirkwood, FLOW Executive Director

My colleague and mentor, Dave Dempsey, knows almost everything there is to know about the Great Lakes. He’s encyclopedic, you could say. He’s authored over 10 books, including a classic one entitled Ruin and Recovery (University of Michigan Press, 2001).

It’s the cycle we here in the Great Lakes are all too familiar with.

The book tells a story of Michigan’s environmental ruin that began to worsen in the early 1900s, followed by the recovery that began in the 1970s as the public clamored for a clean environment.

It is amazing to imagine that over one hundred years ago, as lax water pollution standards led to the fouling of the Great Lakes, the US and Canadian governments had the vision and foresight to craft an international treaty to address boundary water management and disputes. Known as the Boundary Waters Treaty of 1909, this pact established the International Joint Commission (IJC) to serve as the advisor to both governments in preventing, arbitrating, and navigating water conflicts. Of the nine major water basins shared by the US and Canada, the Great Lakes is the largest and has global significance because it contains 20 percent of the planet’s fresh surface water.

In 1972, with increasing international water pollution, the US and Canada entered into the seminal Great Lakes Water Quality Agreement (GLWQA). The Agreement called for binational action by the governments to reduce phosphorus pollution and meet water quality goals. It also set up the Great Lakes Water Quality Board (WQB) to assist the IJC in watchdogging Great Lakes cleanup.

In the 1980s and 1990s, the IJC was considered the moral authority on Great Lakes issues, candidly assessing progress and problems. Thanks in part to the Water Quality Board, the commission made a lasting contribution to Great Lakes cleanup by defining 43 “areas of concern” (AOCs)—bays, harbors, and rivers with severe legacy contamination—that needed sustained commitment to be cleaned up. Over 30 years later, work continues on the AOCs, along with congressional funding of the Great Lakes Restoration Initiative (GLRI).

The work of the Water Quality Board continues, too. The 28-member board provides advice to the IJC for the benefit of the 40 million people who rely on the lakes for drinking water, sustenance, and way of life. The IJC recently appointed me to serve on the Board.

The Board represents the crossroads of the Great Lakes, bringing together diverse viewpoints from tribal leaders like Frank Ettawageshik and water affordability advocates like Monica Lewis-Patrick. It is a pleasure to serve with them and to problem solve how we can bring the Great Lakes community together to respond to old and new problems in the Basin. This work depends on developing key priorities and scientific goals to measure progress, coordinating strong and committed implementation among federal, state, and provincial environmental agencies, building stronger and new partnerships and alliances across these lakes, lifting up silenced voices to ensure water justice for all, and educating and empowering all peoples about the vital importance of protecting the health of our common waters.

It’s been almost 50 years since the two nations entered into the Great Lakes Water Quality Agreement, and during this time, we have watched rust-belt contaminated urban cores rebound and polluted ecosystems revived. But we also have witnessed a rollback of major federal environmental regulations and laws, the Flint lead crisis, Detroit water shutoffs, lack of investment and crumbling regional water infrastructure, lack of safe, affordable drinking water, wetland destruction, water privatization, legacy and emerging pollutants like PFAS, and unprecedented climate change impacts.

Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound. Instead, we must imagine the future we want, where natural and human ecosystems can thrive and prosper together.

To do this, we must challenge traditional assumptions and ways of thinking. We must draw not only on science but also on traditional ecological knowledge (TEK). Traditional ecological knowledge (TEK) is a relational process for indigenous peoples that is built through experience and relationships that are difficult to incorporate into non-indigenous information systems and decision frameworks. We must design and enact bold policies that acknowledge the interconnectedness of human health, economic prosperity, and ecosystems.

With public trust doctrine protection, we can steward our waters as a shared public resource from one generation to the next and ensure multigenerational equity. Healthy economies and communities depend on healthy ecosystems. It’s as simple as that. The future of the Great Lakes depends on a vision and plan based on a water-economy that embraces a new water ethic at its center.

I am honored to serve on the Water Quality Board for the IJC and it is my great hope that we can work together to develop recommendations thattranslate into meaningful bi-national actions designed to protect the long-term health of the Great Lakes.

Resetting Expectations: the Value of Natural Systems and Government’s Role in Protecting Water

Published on August 9th, 2019 by FLOW Editor - Blog Posts, News, Reports & Media Releases

Report author Skip Pruss

This is the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil the last two briefs in the coming months.

Click here to read the full 2nd report.

And in case you missed it, click here to read the full 1st report in the series and here to access its executive summary.

The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.

The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.

Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.

Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.

In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.

The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.

Report’s Key Facts

Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers. More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health.
Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.

Government’s Role in Protecting Human Health and the Environment

Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.

Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.

It is imperative that political leaders, policymakers, and citizens come to understand this critical association.

The Climate Crisis and Sea-sawing Great Lakes Water Levels

Published on August 1st, 2019 by FLOW Editor - Blog Posts, High water

Photo by Rick Kane

By Jim Olson

Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.

The International Joint Commission (IJC) on July 24 hosted a two-hour public listening meeting in Traverse City in the West Bay Resort, located on the shore of West Grand Traverse Bay. After introductions came a performance drawing from a collage of “Love Letters to the Great Lakes” curated and read by celebrated local writer Anne-Marie Oomen and three others to the accompaniment of bassist Glenn Wolff and trombonist Steve Carey.

A standing-room only crowd in excess of 200 people—the largest on the IJC tour so far—voiced its concerns for threats to the Great Lakes: Enbridge Line 5, nuclear waste storage, invasive species, bottled water, plastics and privatization, and harmful algal blooms. But the most threatening concern, one that drives or is exacerbated by the others, was the elephant in the room: the unprecedented record high water levels, which are causing havoc throughout the Great Lakes region.

To get to the IJC listening session, I decided to walk from my office, a normally direct path along East Front Street to the steps leading down through the memorial to Dr. Jim Hall and his son Dr. Tom Hall’s memorial—fitting given their constant work and passion for water and conservation—to the walkway along the Boardman River and under Grandview Parkway. It’s typically a 5-minute jaunt to the resort. But on this day an orange warning sign stopped me: The river overflowed the walkway with more than six inches of water. So I backtracked and dodged the rush hour traffic on the Parkway to the opposite side, and made my way to the meeting.

Photo: The Boardman River washes over the boardwalk in downtown Traverse City in July 2019.

Historical water level records for the Great Lakes show a general span of around 30 years from a significant low-level to high-level period. This year’s swing to a record high-water level in June from a record low-water level in 2013 took only six years. This year’s precipitation in Traverse City is trending 10-percent above the average rainfall so far. Farm fields, homes, businesses, and coastal communities are flooded. Shorelines are gone or shrinking, while erosion, more sediments, and high-water levels have destroyed homes and public beaches or infrastructure. Recent reports on the climate change impacts in the Great Lakes Basin project a 30-percent increase in precipitation, or an increase of nine inches a year or a total of 43 to 44 inches annually in Traverse City. If the current record high 10-percent increase is already wreaking havoc, what will happen when the increase is tripled?

Climate Change already impacting the Great Lakes system

The startling hydrological effects of climate change already are causing significant impacts to the Great Lakes, tributaries, their shores, and communities. These effects and impacts only will worsen as the water balance and quality begin to change because of the changes in the hydrologic cycle and watersheds, threatening massive destruction of natural resources and human habitats. It will amount to billions, if not trillions, of dollars in damage—perhaps the closure of Chicago’s fabled lakeshore trail and other waterfronts, the closure of water-dependent nuclear power plants, wetlands-turned-lakes, floodplains-turned-wetlands, flooded farmlands useless for crops, overwhelmed public water and sewer infrastructure. The list goes on and on—shoreline property damage, loss of beaches for swimming, health threats from flooded sewage, failed stormwater and erosion infrastructure, damage to state park and other public harbor and shoreline facilities, and runoff from contaminated properties all flowing into the Great Lakes.

How will people, communities, businesses, and natural systems cope with these water flows, levels, and loss of coastline, property, infrastructures, and public and private uses? All I had to do to make the meeting was dodge through traffic on Grand View Parkway. No big deal, right? Will the affected interests simply accept the loss and adjust, paying the millions or billions to adapt infrastructure and facilities or private homes? Will the governments fund adaptation programs to move or redesign harbor and waterfront facilities and other infrastructure? Will governments here and across the world revisit the Paris Climate accord, and finally reduce greenhouse gases along with massive expenditures to adapt and become resilient, necessary because reduction of greenhouse gases will only mitigate not prevent the oncoming damage? According to the most recent October 2018 Report from the UN International Panel on Climate Change, nations, states, and people have only a decade to take every possible action to stem and reduce the inevitable effects and impacts of climate change.

Climate Change pushing legal and policy frameworks to the limit

In addition to the oncoming harm and untold damage, the legal and policy regimes that protect the Great Lakes, and which all of us in the Basin and beyond support, are threatened—pressed to their limits is more like it. These include the Boundary Waters Treaty that set up the IJC in 1909 to protect water levels and prevent pollution of the Great Lakes; the Great Lakes Water Quality Agreement that safeguards ecosystems, water quality, health, and recreation; and the Great Lakes Compact and a parallel agreement among the Great Lakes states and the provinces of Ontario and Quebec.

For example, the 1909 Treaty prohibits diversions out of four of the five Great Lakes that affect water levels without a rigorous review and approval by the IJC commissioners (Lake Michigan is not an international water even though, hydrologically, Lakes Huron and Michigan are one lake). We think of “diversions” as human-made transfers of water into or from a river or lake (sometimes groundwater) system from a dam, reversal of a river, a pipeline, or a drainage canal–such as the Chicago diversion out of Lake Michigan waters to the Mississippi River, or the Long Lac and Ogaki-Lake Nipigon diversions into Lake Superior that would otherwise flow to Hudson Bay, or Erie Canal out of Lake Erie across New York to the east coast. In each instance, the IJC, guided by water-level study boards, determines the effect on the levels of the Great Lakes to prevent adverse impacts to ecosystems, harbors, shipping, fisheries, public infrastructure, hydroelectric dams, recreation, and riparian public and private property.

But extreme changes in climate from the failure to reduce greenhouse gases now threaten to remove water into or out of the Basin far beyond what the IJC typically controls. Climate change or the Anthropocene was not on anyone’s mind when the Treaty was signed in 1909. The drought and record low levels 6 years ago diverted more water out of the lakes and this year’s increasing precipitation and record high levels are as much of a diversion affecting levels as a dam, canal, or pipeline. Unlike proposals to divert water on one side of the international boundary, these extreme weather events whipsaw the lakes and their ecosystems, causing serious ecological, infrastructure, property and economic damage on both sides of the border.

Climate Change is a diversion of water

For another example, the Great Lakes Compact bans human-made diversions of surface and groundwater outside the Great Lakes surface divide or boundary. The purpose of the ban is to protect the waters to assure a sustained quality of life and economy within the Basin. There are only a few narrow exceptions—diversions necessary for public water supplies in communities or counties that straddle the Basin with the requirement of treated return flow, emergency and humanitarian single-objective proposals, and the so-called “bottled-water loophole.” The Compact defines a diversion as a “withdrawal of water by human or mechanical means that is transferred from the waters in the Basin to a watershed outside of the Basin”—including the attempt of the Nova Group in 1999 to ship 156 million gallons of lake water a year in a tanker transport to China, the failed attempt several decades ago to divert water from Lake Michigan to the coal fields of Wyoming, or the oft-feared pipeline or diversion down the Mississippi River to save the Southwest or Ogallala Aquifer from overuse and drought.

But what is the difference if human-made mechanical means or uses heat up the atmosphere, which increase evaporation and precipitation, affects the jet stream, and whiplashes areas of the planet between drought and deluge? If we look at the water cycle as a single hydrologic system, which it is, the Great Lakes are an arc of the whole water cycle. We live in a hydrosphere. What happens to one arc of the cycle affects the water levels in the other arcs. Climate change is as much a diversion of water into and out of the Great Lakes Basin as any other human conduct.

Fortunately, both the IJC in its charge to protect water levels and prevent pollution under the Treaty of 1909 and the Council of Great Lakes Governors and Regional Body (governors of eight Great Lakes states and premiers of the provinces of Ontario and Quebec) are aware of the effects and impacts of the climate crisis, and have at least advisory, quite possibly regulatory, authority to address the threats of climate change to the Great Lakes. It would be irresponsible and impossible for any of these governing boards to ignore the effects of climate change on water level or water quality decisions that affect the waters of the Great Lakes Basin in the future. The IJC already has issued a report and warning on the coming effects from extreme weather; sections of the Compact require that direct and cumulative effects from climate change be taken into account, including authority to modify interpretations and application of the principles and standards.

The ban and narrow restrictions on diversions are premised on the fact that the Great Lakes and tributary waters are essentially non-renewable; that is, based on the historic normal ranges of highs and low levels of the Great Lakes, there is really no water to spare for diversions elsewhere. While this may hold true for the normal range of flows and levels in the Basin and its watersheds, it will not hold true for unprecedented increases in flows and levels, such as the highs experienced this year. Strangely, there is suddenly too much water, and it is directly attributable to climate change. If the Compact is designed to keep water in the Basin from demands from regions experiencing drought or water scarcity outside the Basin, what happens when the effects and impacts of climate change push water levels above normal flows and levels and cause or threatens devastating ecological, economic, infrastructure, and public health impacts and losses? Should water be diverted or in-flows reduced or reversed on an emergency basis? If so, on what terms, when, and for how long?

In short, there is not only an ecological crisis, but also a law and policy crisis, and there is an urgent need for action.

The Boundary Water Treaty of 1909

The Boundary Water Treaty vests authority in the IJC to regulate and take other actions, such as reviewing actions that affect water levels and preparing and publishing references, reports, and guidelines to protect and manage Great Lakes water flows and levels (quantity) and pollution (quality); the Treaty prohibits any diversion “affecting the natural level or flow” of water unless authorized by both countries and through the IJC. The Treaty also specifically recognizes that our international boundary waters are a shared commons to be kept and managed for navigation, travel, fishing, hydropower, and other public and private uses and enjoyment for public and private purposes consistent with the principles of the Treaty and laws of both countries.

The Great Lakes Water Quality Agreement of 1972, 1978, 1987, and 2012

The Great Lakes Water Quality Agreement (GLWQA) charges both countries—Canada and the United States—with a responsibility to protect the water quality of the Great Lakes from substances caused by human activity that adversely affect aquatic life; prevent debris, oil, scum and other substances that impair water quality and uses; and protect these waters and ecosystems against nuisance and toxic substances. The GLWQA also has established a protocol to address the existing and emerging effects from water flows and levels, including the significant increases in flows and levels from climate change. According to a former Senior Policy Advisor to the IJC, “this is critical because the IJC’s mandate is the only place where both water quantity and water quality come together in the Great Lakes Basin.”

The U.S. Common Law Public Trust Doctrine or Canada’s Right of Navigation and Fishing Doctrine

The legal regimes of both countries recognize a government obligation based on trust principles to protect navigation, boating, fishing, drinking water and sustenance, and related uses of the navigable waters within their countries and states or provinces. This trust protects these uses from interference or impairment, now and for future generations. The public trust doctrine provides a practical tool to evaluate and guide decision-making based on the existing and emerging effects from hydrogeological and land use watershed systems. The public trust standards that protect the waters and public and private uses from impairment provide the legal framework and process to embrace complex scientific evidence and to craft transboundary policy solutions that contemplate dynamic climate effects and various climate scenarios.

Over the past five years, the IJC has recognized and recommended implementation and application of the public trust doctrine as a framework or “backstop” set of principles to address the growing harms and threatened impact and impairment to the waters, ecosystem, and human use and enjoyment of the Great Lakes. These include the IJC’s 2014 Lake Erie report on Lake Erie algal blooms, the 2015 IJC 15-Year Review on Protection of the Great Lakes, and the 2017 Triennial Assessment of Progress under the Great Lakes Water Quality Agreement. All three reports warn us of the “looming” threat to water quality, water resources, health, and quality of life in the Basin. And the Compact declares that the “waters of the Basin are precious public natural resources held in trust,” and are part of an “interconnected single hydrologic system.”

Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.

Jim Olson, President and Founder

Jim Olson is FLOW’s founder and president

The Changing Great Lakes: Living with Fluctuating Water Levels

Published on July 3rd, 2019 by FLOW Editor - Blog Posts, High water, News

High Lake Michigan water levels have overwhelmed popular beaches, such as this one at East Bay Park at the base of East Grand Traverse Bay. Photo by Holly Wright.

By Dave Dempsey and Jim Olson

This spring, water levels on all five of the Great Lakes have reached, or are approaching, record highs. The result of unusually high winter and spring precipitation, increased winter ice cover and reduced evaporation, these new highs are the latest in a never-ending series of Great Lakes level fluctuations. The levels have typically fluctuated by as much as 7 feet in recent geologic times. However, studies show that climate change is causing or contributing to more rapid swings between high and low water levels. Just six years ago, Great Lakes levels were below normal, and in some portions of the Great Lakes watershed, citizens clamored for new underwater structures to hold back water in an attempt to boost upstream water artificially.

Now the problem is high water, which creates several concerns:

The residences of lakeshore property owners may be at risk of foundational erosion, flooding and even toppling into the lake.
Coastal infrastructure, such as roads and bridges, is vulnerable to erosion damage and destruction.
Public access to the shoreline may be limited, both because of inundation of prime publicly-owned coastal land and because high water will intrude beyond the ordinary or naturalhigh-water mark, the limit of access adjacent to private property.
Taxpayers may be asked to pay the bill for erosion control, moving of structures away from the lake, and/or damages.

In a recent article published in The Conversation (an online magazine devoted to “academic rigor and journalistic flair”), University of Michigan scientists Drew Gronewald and Richard Rood say they “believe rapid transitions between extreme high and low water levels in the Great Lakes represent the ‘new normal.’ Our view is based on interactions between global climate variability and the components of the regional hydrological cycle. Increasing precipitation, the threat of recurring periods of high evaporation, and a combination of both routine and unusual climate events – such as extreme cold air outbursts – are putting the region in uncharted territory.”

Supporting their observations, water levels have also tumbled dramatically in the last several decades. In 1998-99, the water levels of Lakes Michigan and Huron dropped 25 inches in 12 months.

The public often asks whether governments can do something to raise or lower levels. But the fact is that human engineering can do little in this regard. While there are laws for setting or modifying inland lake levels, increasing outflow from one lake to the next often has a ripple effect downstream. The problem will only worsen with increased precipitation and water levels now experienced in the Great Lakes region. Similarly, manipulation of water level control structures to address lower water levels can, in turn, lower any one of the lakes only a few inches. Only one percent of the volume of the Great Lakes flows out of the system annually. Far bigger influences are precipitation and evaporation.

Members of the public also ask whether they can still walk the beach when water levels are above the ordinary or high-water mark that defines the boundary between state ownership and private riparian ownership. As a practical matter, the public should still be able to enjoy a right to walk the beach and shores of the Great Lakes—provided it is safe—so long as they remain in the zone along the water’s edge that is wet or compacted by recent wave and other natural forces of nature.

The International Joint Commission (IJC) observes, “Unlike oceans, where tides are constant and predictable, water levels on the Great Lakes can vary significantly in frequency and magnitude making them difficult to accurately predict.” A US-Canada treaty body, the IJC is responsible for maintaining control structures at Sault Ste. Marie, Niagara Falls and the meeting point of Lake Ontario and the St. Lawrence River.

A popular misconception is that warming temperatures associated with climate change will significantly lower Great Lakes water levels. But the effect of climate change on these levels is unclear. Warmer air holds more moisture, leading to an increasing number of heavy rain and snow storms. In fact, some models predict rising Great Lakes levels as a result of climate change.

To minimize our contribution to climate change and to protect our Great Lakes ecosystem, we should reduce our use of fossil fuels and we should push our elected leaders to act on climate change. However, given that human effort can do relatively little to alter quickly-changing Great Lakes water levels, adaptation should be our societal response.

Resources

Great Lakes water level update, U.S. Army Corps of Engineers

Great Lakes water levels, International Joint Commission

Great Lakes Water Levels and Related Data, Government of Canada

Jim Olson is founder and president of FLOW; Dave Dempsey is senior advisor.

Legal Fact from Legal Fictions

Published on October 9th, 2018 by FLOW Editor - Blog Posts, H2Olson, Public Trust Tuesday

A Preface

When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.

The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.

The Michigan-Enbridge “Second Agreement”

Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.

This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
- Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
- There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
- The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.

Jim Olson, President and Legal Advisor

So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.

A Tunnel for Line 5? – That Would be a Big Mistake

Published on August 6th, 2018 by FLOW Editor - Blog Posts

In an end-run around the public participation process they established, Governor Rick Snyder and Enbridge, Inc., the owner and operator of Line 5, are exploring the possibility of building a $500 million tunnel to replace the stretch of 65 year-old Line 5 pipeline that runs under the Straits of Mackinac.

While a tunnel, properly designed and engineered, may be able to prevent harm in the event of a pipeline breach under Lake Michigan, there are compelling reasons why a tunnel should not be built.

First, the five-mile segment of a tunnel running under the Straits of Mackinac represents less than 1 percent of Line 5’s total length of 645 miles. Long segments of this aging infrastructure run parallel to the Lake Michigan coast in the Upper Peninsula, crossing 400 rivers and streams that are tributary to Lake Michigan and numerous other water bodies. Records from the Pipeline Hazardous Materials Safety Administration indicate that in the last 50 years, there have been at least 29 spills along the length of Line 5 outside of the Straits, resulting in the release of over 1 million gallons of oil and natural gas liquids.

The threats to our freshwater lakes and streams will escalate over time as the other 640 miles of Line 5 age and degrade.

Second, aside from the fact that Line 5 crosses Michigan largely to serve markets outside our state, a tunnel for Line 5 is a fundamentally unsound investment – one that is unneeded, economically imprudent, and may soon be functionally obsolete.

Major new pipeline infrastructure investments assume the continued demand for transportation fuels. But our fossil fuel-based economy is in transition and will be completely transformed within the coming decades.

Recent petroleum sector forecasts by firms specializing in energy trends like Bloomberg, Navigant, and Goldman Sachs, predict that the transition to electric vehicles will accelerate quickly with a corresponding, precipitous drop in the demand for transportation fuels.

The world’s major auto manufacturers are validating these predictions. General Motors, VW, Volvo, and others are making clear that petroleum-free electric drivetrains will dominate their future manufacturing investments and that future product offerings will not use transportation fuels.

At the same time, sovereign nations are intent on extinguishing demand for petroleum. England, France, Norway, Netherlands, Slovenia, India and China have announced their intentions to ban future sales and, in some cases, the use of vehicles with internal combustion engines. Ireland has gone even further, announcing that it will divest its sovereign interest in all oil, gas and coal.

And while Enbridge boasts that it transports 63 percent of all Canadian oil to the United States, Big Oil sees the writing on the wall. Seven international oil companies – Exxon Mobil, Conoco Phillips, Statoil, Koch Industries, Marathon, Imperial Oil and Royal Dutch Shell – will not need Enbridge’s future pipeline services as they have announced that they are writing off tar sand assets in Alberta.

The confluence of these trends will result in demand for transportation fuels declining precipitously, rendering a Line 5 tunnel project a costly albatross.

Third, climate change is the elephant in the room. Continued investment in fossil fuel infrastructure is fundamentally at odds with the global consensus on the urgent need to reduce greenhouse gas emissions. The findings of our National Climate Assessment are unambiguous – decarbonization of the global economy is an imperative, entailing a “fundamental transformation of the global energy system” to one that is no longer dependent on fossil fuels. As the need to address climate change becomes more acute, new pipelines proposals will be met with the scrutiny they deserve.

Finally, we should all be able to agree that there are exceptional places and natural features that are deserving of special protections. Just as we would not allow a foreign corporation to build a tunnel under the Grand Canyon, the Great Lakes should be off limits to fossil fuel infrastructure.

Our Great Lakes are a globally-unique natural resource, the largest interconnected freshwater system in the world, containing 84 percent of all surface water in North America. Recognizing that certain natural resource endowments are invaluable and irreplaceable gifts of nature, both state and federal law already prohibit all oil and gas development, even if done laterally from inland areas.

Skip Pruss, FLOW Chair

Building a tunnel to perpetuate Line 5 makes little economic or environmental sense. The decisions we make about how to use and protect our freshwater seas will ultimately be judged on whether they do or do not protect the ecological, social, cultural, and economic interests of future generations.

Simply put, our Great Lakes merit extraordinary protection, and their bottomlands must be off limits to oil and gas pipelines.

Common Water, Public Health, and the Common Good: Just What Does the Term “Public Trust” Mean Anyway?

Published on April 10th, 2018 by FLOW Editor - H2Olson, Public Trust Tuesday

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, these 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.

The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.

First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.

Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.

Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.

All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.

All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor.

Jim Olson, President and Founder

Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all. It might even make for better business, jobs, economy, and quality of life that will be more lasting.

Court Charts Path Forward for Generational Commitment to Save Humanity and Earth from Rising Devastating Effects of Climate Change

Published on March 13th, 2018 by FLOW Editor - H2Olson, Public Trust Tuesday

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, these 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.

Between 2010 and 2016, several groups of young people filed lawsuits in different regions of the United States, claiming the states and federal government had failed to fulfill their higher duties under their authorized powers to do something about CO2 and greenhouse gases (GHGs) that have fired warming of the planet, extreme weather events—climate change—causing devastating harm to their lives, homes, families, waters, fishing, and communities.

Federal and state governments stonewalled their efforts, claiming that they could not be compelled to take action because the children did not have a liberty or property interest protected by the Constitution, and that they had no right or interest – standing— to bring a lawsuit.[1] At first, the government succeeded, and then one or two courts recognized that these children’s lives and interests were threatened, and that climate change was a clear danger if not the cause of serious injuries and damage, and opened the door for litigation. But none of these efforts resulted in a clear recognition that these children, or other people threatened or harmed by climate change induced extreme weather, had a constitutional interest in “liberty” or “property,” or an interest as beneficiaries of a public trust imposed on government to protect vital interests—like drinking water, property and home, and fishing, boating, or farming.

A Watershed Moment

Nothing much happened, that is, until Kelsey Cascadia Rose Juliana and other children, through their legal guardian, climate scientist James Hansen, filed suit in the federal court in Portland, Oregon in early 2015.[2] The child plaintiffs charged that the federal government had violated their constitutional and public trust rights – a generational right to non-impairment of their beneficial rights in water and use of water for essential needs based on the public trust doctrine.[3] The children charged that the government and EPA had failed to take sufficient action to stem the harm and dangers of climate change, that the window for action to prevent increasing catastrophe was short, and requested an order from the court to compel the government to develop and implement a comprehensive plan to reduce CO2 and effects of climate change.

Once more, the federal government, joined by intervening industry organizations, moved the court to toss the suit because there was no legal precedent for these claims, and even if they existed, the children lacked standing or any real interest to protect, and that the students were interfering with the exercise of political discretion left to the government. In sum, the government argued the claims even if real were not the students’ business or the stuff that courts should decide.

But this time, the federal government lost. The magistrate ruled that the children had stated facts, endangerment, and harms sufficient for the early phases of the suit to proceed.[4] But government and industry, now threatened by the suit, filed motions before the federal district judge assigned to the trial of the case. In an enlightened opinion in late 2016, Judge Aikens rejected government and industry contentions, adopted the magistrate’s earlier decision, and ruled that the children plaintiffs had the right to bring the suit. He also ruled that the children had properly stated the critical dangers of climate change, the deliberate indifference on the part of the government, and properly claimed a violation of “liberty” under the constitution and the government’s high duty under the public trust doctrine to protect the children’s present and future from threats of rising oceans and impairment of the nation’s waters.[5]

Judge Aikens considered the threat to the children was real, had already caused serious damage, and posed imminent danger to them and humanity in the near future. Exercising what he considered the traditional role of the courts, because the judiciary can’t ignore a “wholesale failure” that unchecked would result in a “collapse” of humanity. Judge Aikens ordered the parties to prepare for a trial that would determine the basis of climate science, the children’s claims, and apply the law and Constitution.

Hurricanes Harvey and Maria

More recently, Hurricane Maria in Puerto Rico and Hurricane Harvey, and the raging fires in California, have jolted us into the realization that global warming and extreme and increasingly chronic effects have caused and are causing devastating and chronic harms and interference with communities, property, and water. To list a few, rising sea levels wreaking havoc in coastal cities, flooding, drought and heat and fires, endangered public health, shut off of public services and water systems, landslides and other damage to property and lives.

Closer to home, in the Great Lakes region, including Michigan, we’ve seen climate change effects exacerbate and foster algal blooms that have shut down Toledo’s drinking water for 400,000 people, and more in Monroe, Michigan. We’ve seen extreme rainfall events overwhelming stormwater controls and drains, resulting in sewage overflows and serious flooding.

In the last century, some courts still held fast to the idea that the air was the atmosphere, lakes and streams were surface waters, and the water beneath our feet—groundwater—was simply “out of sight, out of mind.” In the last 30 years, hydrogeological and weather scientists have made one thing clear: We live in a water cycle, the hydrosphere, where every arc of the water cycle is connected to the others. The arc of precipitation falls to the earth; the arc of runoff flows over the land surface to drains, gullies, and into creeks, streams, rivers, and lakes. The water percolates into the earth and forms aquifers—water sources—and groundwater, another arc, which then discharges through seeps, springs to form creeks, streams, rivers, and lakes. Then, these surface waters flow to the ocean. From the arc of evaporation—from the surfaces of vegetation and water bodies, transfers water into the atmosphere. In the atmosphere, water is diverted into the arc of the air or our hydrosphere, in the form of concentrated “rivers” and “lakes” of moisture and water.

Climate change is not just an air pollution question, it is also a water question– hydrosphere—climate change directly affects the hydrology and movement of water in every arc of the water cycle, and interferes with and impairs water, land, homes, community, and people everywhere. The effect of climate change on water and earth and life dispel any doubt that we and everything else are inextricably connected by the flow and movement of every arc of the water cycle.

Yet despite efforts to do something about climate and water and to become more resilient to live as best we can with the coming changes and impacts from climate change, the federal government continued to drag its feet. The federal government was forced and prodded by the federal courts to treat CO2 as a “pollutant” under the Clean Air Act, but our current President has thumbed his nose at climate change rules and denounced the Paris Climate agreement. It is not unreasonable to conclude there has been a deliberate indifference on the part of governments and industries to reduce the rising dangers and imminent threat to millions of people, water and the hydrosphere.

Constitutional Rights and the Public Trust in Water

In 2011, For Love of Water (FLOW) and the Council of Canadians (Canadians) filed a formal report and request with the International Joint Commission (IJC) to recognize the legal interest of citizens and the duties of both countries and state governments to protect water quality, flows, levels, and its protected uses that citizens rely on for their lives, sustenance, and livelihood based on the public trust doctrine. The public trust is a well-established ancient principle that protects navigable waters and the rights of fishing, navigation, drinking water, swimming, bathing, and sustenance. Because current laws and the governments’ ability to address increasing systemic threats to the Great Lakes and all tributary waters–like algal blooms, Asian Carp, rises and drops in water levels from extreme weather, toxic chemicals, and algal blooms from nutrients and climate– FLOW and the Canadians asked the IJC to recognize the public trust doctrine, and urge governments to fulfill their duties as trustees of these waters and public trust natural resources. After supplemental reports and considerations, the IJC issued a report in 2016 that recommended the public trust as a “backstop” to fill the gaps and limitations of existing laws and efforts.

At about the same time, Michael Blumm at Northwest Law School in Portland and Mary Christina Woods at University of Oregon pioneered claims that the public trust doctrine should be applied to the atmosphere in order to force governments to drastically reduce CO2 and GHGs.[6]

Even without extending the public trust doctrine to protect the atmosphere, FLOW argued that because the arcs of the water cycle formed a single hydrological system—hydrosphere– the traditional application of the public trust doctrine to navigable waters could be used as a basis to reduce CO2 and GHGs, because the effects on the hydrosphere had a direct effect on streams, lakes, and the oceans, and impaired if not destroyed fishing, drinking water, and other life-sustaining public trust uses.[7] Judge Aikens followed similar reasoning in accepting the children’s public trust claim in the Juliana suit.[8]

Trump Administration Climate Change-Deniers Try to Torpedo the Children’s Trust Lawsuit

In a last-ditch effort to avoid a trial over the children’s climate change suit, newly appointed federal officials and their lawyers looked for a way to deep-six the Juliana lawsuit before federal district court Judge Aikens. Justice Department lawyers filed an unorthodox request with a federal court of appeals to take over control of Judge Aikens’ handling of the lawsuit, and peremptorily dismiss the case. But the Seattle federal appeals court slapped down the federal government’s bid, ruling that their attempted appeal was a “drastic remedy” on the claims brought by the children because the issues would “be better addressed through the ordinary course of litigation.”[9]

Commentators everywhere exclaimed that the appeals court ruling affirmed the federal district court that the children could proceed and signaled a landmark ruling on the science and causation of greenhouse gases and climate change. In a classic traditional role, the courts– our third branch of government—have stepped in to interpret what the law is to remedy the unjust deliberate indifference of government and climate deniers. Since Juliana and twenty-one other children filed their suit in 2015, the cities of New York and San Francisco filed suits against Chevron, ExxonMobil, ConocoPhillips and Royal Dutch Shell to pay for the damage and infrastructure needed to combat climate caused by the sale and burning of fossil fuels. Like in the lawsuits against the tobacco industry, the fossil fuel industry has known fossil fuels have heated the climate beyond acceptable levels and endangered cities, water, and the planet. And like the tobacco industry, they’ve done what they can to foster denial and obstruction to the required shift to renewable energy and rapid reduction of CO2 and greenhouse gases.

Jim Olson, President and Founder

In a way, climate change denial by government and industry is reminiscent of the Scope’s trial, fictionalized by Spencer Tracy as Darrow and Frederick March as Bryant in the 1960s movie Inherit the Wind. But the passion of Bryant was based on a genuine belief in the deeper role the Genesis story in defining the human’s place in a world created by God. The coming climate change trials are not so much a denial of science or genuine passion of belief, but a corporate defense of a fossil-fuel grip on the economy, to protect a financial empire that is causing damage and a growing danger of the collapse of humanity with a shorter and shorter period to do anything about it.

Postscript:

Congratulations to lead attorney in Juliana v U.S., Julia Olson (no relation), and Professors Michael Blum (Northwest School of Law, Lewis and Clark, Portland) and Christina Woods (University of Oregon, Eugene), and so many others. Is there any question that the effects of intense storms on the people of Puerto Rico and Houston or the raging fires in California are attributable to climate change? The Children, their lawyers, scientists, and so many organizations and people are bringing justice to those injured by breach of government affirmative duties to protect water, atmosphere, life, and the public trust. We are grateful. The public trust in water and our hydrosphere are the heart of our mission and work. www.flowforwater.org. Join us, read up on background articles, and share. The time for mitigating climate change effects is short.

[1] E.g. Alec L. v. Jackson, 853 F Supp. 2d 11 (D.D.C. 2012).

[2] Juliana et al. v. United States, 2016 WL 183903 (Magistrate., Ore. D. Ct., Order, Jan. 14, 2016).

[3] The public trust doctrine imposes a “solemn” duty on governments, as trustees, to protect certain waters—oceans or inland lakes and streams of the state, or their tributaries, from impairment or from interference with boating, fishing, swimming, bathing, drinking, navigation and other public uses of these waters. See Illinois Central R Rd. v Illinois, 146 U.S. 387 (1892); Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich L. Rev. 471 (1970); James Olson, All Aboard: Navigating a Course for Universal Adoption of the Public Trust Doctrine; 15 Vermont J. Env. L. 135 (2014); see generally, Flow for Love of Water, a Great Lakes law and policy center dedicated to the preservation of citizens public trust in water and nature. www.flowforwater.org.

[4] Juliana v U.S., supra, 2016 WL 183903.

[5] Juliana v. U.S., 217 F Supp. 3d 1224 (2016).

[6] See Mary Christina Woods, Nature’s Trust (Cambridge Univ. Press 2013).

[7] James Olson and Elizabeth Kirkwood, FLOW Report to International Joint Commission on “Draft International Joint Commission 10-Year Review on Protection of the Waters of the Great Lakes Basin,” (June 30, 2015).

[8] Juliana, supra, 217 F Supp. at 1275.

[9] United States v U.S. Dist. Court, 2018 U.S. App. Lexis 5770 (9^th Cir., Mar. 7, 2018); “We’ll See You in Court: Kids Climate Moves Forward After Judge Denies Trump,” www.ecowatch.com/kids-climate-lasuit-trial-2544414443.html. Mar. 11, 2018.

NY Times features Public Trust Doctrine

Published on May 25th, 2016 by FLOW Editor - H2Olson

A recent article on the New York Times Opinion Editorial Page features the public trust doctrine as basis for citizens, including the children atmospheric trust cases, to bring court actions to order governments to take affirmative action to drastically reduce greenhouse gases and minimize climate change. All water, air, and wildlife are legally viewed as public commons. Water and other commons that are special, rare, unique or endangered are protected specifically by the public trust doctrine. Certainly, the atmosphere, which is actually a hydrosphere connected to public trust water, at this time in history is rare, endangered, and tied directly to devastating harm to this and future generations, including our navigable public trust waters and their tributaries. These court cases and similar efforts are growing evidence of a paradigm shift in this country to protecting our commons; they are public, necessary for health and life, and do not belong to any one private interest or sector. The public trust duties require affirmative action in perpetuity to protect citizens rights to water an air under public trust principles. Our federal and state governments have inherent and significant authority to fulfill these duties, and must do so now, without our children having to be surrogates for government and the rest of us. There is no excuse to wait, by government or the fossil fuel industry; failure to take action and waiting and stalling, or patterns of interference in protecting water and air from climate change will impose liability on them.

Holiday Thoughts on the Paris Climate Change Agreement: A Christmas Gift of Hope and Reality

Published on December 18th, 2015 by FLOW Editor - H2Olson

By Jim Olson, President

FLOW (For Love of Water)

We can be thankful that nations of the world have opened the door to the foyer to address climate change. Most encouraging is the senses of cooperation to protect this home we call earth.

The other end of the promise and hope of the Paris accord is the reality that the thick tail of climate change has been rampaging and will continue to do so, erasing soil, melting glaciers, flooding and erasing people, landscapes and communities from the face of the earth.

Keith Schneider, NY Times journalist and senior editor at Circle of Blue, once again, in his true to form visionary hard-core journalism, lays bare this reality in his article in the New York Times. The whipsawing swing of climate has, is, and will strike hard. In the midst of humanity’s hope, so the message is clear: We must face reality, start the change, start finding and living the new renewable life, move toward inevitable near fossil-fuel free economies and lives, and we must do so as fast as possible to shift to the inevitable renewable energy economy.

Many places and people need this, we owe it to them as co-citizens. We owe it to ourselves and our children, and the unborn children to come. Earth is our common home — as Pope Francis puts it in his encyclical on climate and sustainable environment and communities. And, in the middle of this change, there is another shift, one that is based in ancient and modern principles — the commons of this world — air, water, soil, species, life itself, and the liberty of humans, depend on understanding and respecting this commons. To do this, we must view and manage these as held in trust, a public trust, one that brings us to an ethical and legally implemented framework that manages and passes on these commons by maintaining or restoring a sustainable integrity of air, water, soil, species, including we sapiens, for centuries to come.

If we can shift to seeing our individual goals, dreams, needs as dependent on and fostered by the commons, we can solve these threats with incredible resilience, creativity, cooperation and entrepreneurship. But we must start this shift in paradigm to a comprehensive, unifying principle of commons and public trust now – in 2016– to guide our decisions, force the right decisions that if not made trespass on and impair the commons in violation of this trust, so that we truly solve these threats at the level of the problem. If we do this, the gift this Christmas may be the protection of liberty and dignity and survival that depend on this, a gift of reality that encourages us to change along the lines of both the hope and reality of climate change and our future.

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Postscript:

NY Times features Public Trust Doctrine

Holiday Thoughts on the Paris Climate Change Agreement: A Christmas Gift of Hope and Reality

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A Watershed Moment

Hurricanes Harvey and Maria

Constitutional Rights and the Public Trust in Water

Trump Administration Climate Change-Deniers Try to Torpedo the Children’s Trust Lawsuit

Postscript:

Recent Posts

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