On Monday, Traverse City’s own William G. Milliken, the state’s longest serving governor, turns 96. It’s an appropriate time to reflect not only on his outstanding environmental record — the best of any chief executive of Michigan — but also on his legacy of civility and decency, as scarce these days in public life as rainfall in the desert.
Taking office a year before the first Earth Day in 1970, Governor Milliken put environmental issues high on his agenda. During his nearly 14 years in office he was instrumental in crafting the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, the Wetland Protection Act, and the state’s nationally-renowned deposit law for beverage containers. He also signed laws improving management of hazardous and solid waste, protecting sand dunes, banning oil drilling in the Great Lakes, and creating the predecessor of the state’s monumentally successful Natural Resources Trust Fund.
He was the first governor to warn of the threat of Great Lakes water diversion, convening a conference on the subject in 1982. That led to Michigan law and regional policies banning most diversions.
Governor Milliken
It wasn’t always easy, or popular in the Governor’s own political party. He overrode objections from a key
party backer to support a rule reducing phosphate content in laundry soaps, leading to an almost immediate reduction in algae blooms.
Governor Milliken also considered the fate of Detroit closely linked to the vitality of Michigan. It’s regrettable that his strong support for mass transit in southeast Michigan — and the significant environmental and social benefits that would have resulted — was thwarted by skeptics.
The Governor credited his youth in northern Michigan as a major influence in his political support for environmental protection. He spent summers at his family’s cottage at Acme on the east arm of Traverse Bay. He enjoyed fishing, canoeing, and sailing.
Moderate in political philosophy, Republican Governor Milliken was statesmanlike in tone. He was willing and able to work with legislators of various political philosophies, and refrained from demonizing any. That, too, is part of his legacy.
“In Michigan,” he said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
The Governor’s work goes on. It is the work of all Michiganders.
Today is World Water Day, focusing attention on the importance of water. The theme for World Water Day 2018 is Nature for Water – exploring nature-based solutions to the water challenges of the 21st century.
In Michigan, citizens are rallying to call attention to the failure of state policymakers to protect our water. Shannon Abbott, vice president of the Grand Rapids Water Protectors, said water contamination has been largely ignored by state officials.
Pressing issues for the Great Lakes
FLOW shares these concerns and others related to water:
The state’s failure to exercise its public trust prerogatives to shut down the Enbridge Line 5 pipelines in the Straits of Mackinac. A rupture of one of these lines would have catastrophic impacts in Michigan.
The state’s failure to block efforts by Nestle to dramatically increase its Michigan water extraction to increase private profits it derives from selling the public’s water.
Proposals to install factory fish farms in the open waters of the Great Lakes.
State legislative efforts to give special interests veto power over state rules protecting water and other resources.
A state legislative proposal to give automatic approval of major water withdrawal proposals for factory farms — and keep the information on which the withdrawals are based from becoming public.
These policies are inconsistent with the wishes of Michigan citizens. They want clean, abundant water. World Water Day is an opportunity to speak out for our water and the Great Lakes.
High stakes
Here’s what’s at stake in Great Lakes protection:
The Great Lakes contain almost 20% of the surface freshwater in the world.
The Great Lakes contain 84% of the surface water supply of North America.
Only 1% of the volume of the Great Lakes is renewed annually from precipitation and runoff; the water balance of the Lakes is delicate.
The average drop of water takes 191 years to pass through Lake Superior.
Spread evenly across the 48 contiguous states, the Great Lakes would turn the U.S. into a swimming pool 9.5 feet deep.
There are approximately 35,000 islands in the Great Lakes, including the largest lake island in the world, Manitoulin.
There are about 10,900 miles of Great Lakes shoreline, 200 miles less than the distance between Detroit and Perth, Australia.
Measured by surface area, Lake Superior is the largest freshwater lake in the world, Lake Huron is third, Lake Michigan is fourth, Lake Erie is tenth and Lake Ontario is twelfth.
Lake Superior could contain all the other Great Lakes plus three more lakes the size of Lake Erie.
Eight states and Ontario border the Great Lakes. Michigan is the only state almost entirely within the Great Lakes watershed.
Although proponents of Great Lakes aquaculture say it can be done without compromising the lakes, accidents have led tribes and First Nations peoples to call for a shutdown of Atlantic salmon net-pen farming along the West Coast of North America. photo: NOAA
It would be hard to imagine Michigan State University Extension studying how to accommodate corporate factory farms on the campus grounds or private fish farm cages in the Red Cedar River that passes through. And yet MSU Extension is promoting its view in articles and at trade conferences that the public waters of the Great Lakes are a great place for private fish farming.
The extension service’s latest message on aquaculture describes how to reduce the likelihood that private fish farms would spread disease, trigger algae outbreaks, or weaken genetic diversity among native fish in the Great Lakes. The research is misplaced – literally. Instead of trying to help private companies minimize their damage while occupying public waters, MSU Extension should turn its focus to helping grow the aquaculture industry on private property not relying on the Great Lakes or their navigable tributaries.
Public Trust Law Prohibits Great Lakes Fish Farms
In legislative testimony and public outreach, FLOW has maintained that, by definition, concentrated fish farms occupying navigable waters of the Great Lakes are subject to public trust law and would directly violate Michigan’s public trust obligation to manage and protect these waters for the enjoyment of current and future generations.
As FLOW has outlined in its recent Great Lakes fish farmingissue brief, the use of public waters and bottomlands of the Great Lakes, or tributary navigable waters, for the occupancy and operation of concentrated fish production raises substantial legal, environmental, aquatic-resource, and water-use impact issues, including:
Exclusion of public access and occupancy of bottomlands for private purposes, impairing the public rights of boating, fishing, swimming, drinking water, and other forms of paramount public uses protected by public trust law;
Likely impacts from wastes, including pharmaceuticals, and nutrient loading, and;
Escaped fish competing with wild fish for food, spreading disease, and threatening genetic diversity and the sport-fishing industry.
The public trust doctrine applies to all navigable waters and bottomlands of the Great Lakes up to the ordinary high-water mark, whether by common law or statute, including Michigan’s Great Lakes Submerged Lands Act. Accordingly, any decision involving enclosed, cage or net-pen concentrated fish-farming operations must be reviewed by the framework, principles, and standards set forth under public trust law.
Anglers, Scientists, Lawmakers, & State Agencies Oppose Great Lakes Fish Farming
Numerous Great Lakes advocates, including environmental and anglers’ groups, tribes, scientists, legal experts, a trio of state agencies, and lawmakers in both major parties, say that net-pen aquaculture in the Great Lakes is not legally authorized and is too risky for the environment, native species, and the multibillion-dollar sport fishing economy.
In the Great Lakes, a small number of commercial fish farms have been allowed since the 1980s, but only in Canadian-held waters in Lake Huron’s North Channel and Georgian Bay. Michigan began to seriously consider Great Lakes fish farming in 2011 when three state agencies—the departments of Natural Resource (MDNR), Environmental Quality (MDEQ), and Agriculture and Rural Development (MDARD)—partnered with the aquaculture industry. Together they created a “road map” to help aquaculture operators navigate the regulatory process, consider the industry’s possible expansion into the Great Lakes, and grow the state’s current $5 million industry into a “major part of Michigan’s agriculture sector.”
The road map paved the way for two commercial proposals in 2014 to build net-pen rainbow trout operations—each harvesting as much as one million pounds of fish a year—off Michigan’s coast in northern Lake Michigan near Escanaba and northern Lake Huron by Rogers City.
Spurred by the proposals, the state agencies extensively studied the economic and environmental impacts, legal framework, and public perception of net-pen fish farming in the Great Lakes. In the face of troubling environmental and economic findings and stiff public opposition, the agencies’ March 2016 report strongly recommended against fish farming in the open waters of the Great Lakes “at this time,” citing “significant risks to fishery management and other types of recreation and tourism,” objections from Indian tribes, lack of a multimillion-dollar state funding stream to start up and maintain a program promising modest returns, and the absence of legal authority to issue permits.
Closed-Loop Fish Farming on Land Holds Promise
While several lawmakers, agencies, and organizations oppose opening the Great Lakes to commercial fish farming, many support closed-loop aquaculture systems on land that are completely separated from public-trust rivers, lakes, and streams For example, a Norwegian company in January announced plans to build one of the world’s largest, land-based salmon farms in Maine. The plan calls for up to $500 million in investment creating up to 140 jobs.
Advocates contend that these closed-loop fish farm operations can be a sustainable source of nutritious local food and economic development. The trio of Michigan resource agencies—MDEQ, MDNR, and MDARD— overseeing aquaculture have expressed support for assisting the industry in the development of closed-loop, recirculating aquaculture facilities.
Contained systems on land continually recirculate and filter water in the fish tanks and offer advantages over, and address several key concerns regarding, open-water fish farming, including:
No reliance on public waters;
Capture and treatment of waste, including excess feed and chemicals;
Disease prevention;
Little or no chance of fish escaping into the wild;
Tight control of the temperature, flow, and water quality to ensure optimum rearing conditions; and
Less water use than other aquaculture systems.
According to Michigan Sea Grant, the disadvantages of closed-loop systems are high complexity, start-up costs, energy use, and failure rates. Taking up the challenge, the Michigan Office of the Great Lakes, in its 2016 statewide water strategy, expressed support only for closed-loop or recirculating aquaculture systems and called for the state and industry to collaborate to establish operational best practices and grow the industry.
Michigan Lawmakers Should Ban Great Lakes Fish Farming Before It Takes Root
Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound after an Atlantic salmon net pen failed last August, releasing 250,000 Atlantic salmon into local waters. FLOW has called on the Michigan legislature to expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.
The bottom line is that it is the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.
Kelly Thayer, FLOW Contributor
It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”
Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.
Click here for related news on Anglers of the Au Sable lawsuit challenging the Grayling Fish Hatchery.
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.
A proposal by the City of Racine, Wisconsin to divert 7 million gallons a day of Lake Michigan water to support an industrial development risks a dangerous precedent that could undermine the Great Lakes Compact, and is inconsistent with the public trust.
The Wisconsin Department of Natural Resources is accepting comments until tomorrow on the City’s application. The City, and Wisconsin state officials, have made no secret of the fact that the water is largely going to supply a new business development, Foxconn, outside the Great Lakes watershed.
The Compact, however, is clear that any water exempted from its general ban on diversions “shall be used solely for Public Water Supply Purposes.” State and local government officials have explicitly stated that the water will be used primarily to facilitate a single industrial use. The Compact’s definition of Public Water Supply Purposes is “a group of largely residential customers that may also serve industrial, commercial, and other institutional operators (emphasis added).” This clearly means that any industrial or commercial uses must be incidental, not the primary purpose.
From FLOW’s perspective, an equal or greater concern is that the proposed use is inconsistent with the public trust doctrine. The waters of the Great Lakes and navigable waters of Wisconsin are subject to the doctrine, which requires any diversion of this kind to promote a primarily public, not private purpose, under U.S. Supreme Court, Wisconsin, and Michigan Supreme Court law. The doctrine also requires the Wisconsin DNR to consider the effects of the diversion or transfer out of the basin on the Great Lakes and all navigable waters and the uses dependent on those waters that are potentially affected by the transfer, use, or return and/or net loss.
Under the rules of the Compact, review by the other seven Great Lakes states for this diversion is not required. That’s largely because the jurisdiction in which Foxconn will be sited is the Village of Mount Pleasant, a so-called “straddling community” that sits partly inside and partly outside the Great Lakes watershed. If the Village were entirely outside the watershed, all eight Great Lakes states would formally participate in the decision.
The Wisconsin DNR is obligated to consider comments from the public on this proposal. You can make your thoughts known by email to DNRRacineDiversionComments@wisconsin.gov.
Sometime in May or June of 1973, the Michigan Chemical Company accidentally shipped a fire retardant with the brand name of Firemaster to Farm Bureau Services, a supplier for thousands of Michigan farmers, in place of Nutrimaster, a cattle feed containing magnesium oxide. Firemaster was a brand name for PBB, used to reduce the flammability of plastics and electrical circuits. Customers incorporated Firemaster in, among other things, auto dashboards and casings for telephones and hair dryers.
The mistake apparently happened at a time when Michigan Chemical ran out of preprinted bags and hand-lettered the trade names of the two products in black. The similarity of product names or even smudging of the letters was all it took to make the first link in a disastrous chain of events.
Farm Bureau Services sold the mislabeled feed to, among many others, dairy farmer Fred Halbert of Battle Creek. Halbert purchased 65 tons and after one week of feeding it to his cows in the fall of 1973, noticed the animals were sick. They lost appetite, lost weight and produced 25 per cent less milk. When Halbert stopped feeding the Firemaster pellets to the cows, they showed signs of recovery.
In October 1973, the state Department of Agriculture’s head diagnostician inspected the herd and at first suspected lead poisoning. When tests for lead proved negative, the department sought help from Michigan State University and laboratories in Wisconsin, Iowa and New York to isolate the contaminant in the feed. Not until May 1974 did the department determine, with help from Halbert’s son Rick, a chemical engineer, that PBB was the poison. The department then tested feed and farm products across the state. In the first six weeks after the identification of PBB, the state seized 621 tons of feed, quarantined 388,000 chickens, destroyed 13,000 tons of butter and cheese, and imposed a quarantine on 34 dairy herds with 4100 contaminated animals. By 1975 the state had quarantined more than 500 farms and condemned for slaughter over 17,000 cattle, 3,415 hogs, 1.5 million chickens, and 4.8 million eggs.
Before the controversy died away, PBB spawned intensive coverage by the national news media, a made-for-TV movie, a special episode of a popular network drama, and bitter charges of government and industrial coverup and incompetence from the affected farmers and families.
Manufactured for only five years, PBB was so new and poorly-understood that the U.S. Food and Drug Administration did not even set a safety standard for the chemical in food until after it was determined to be the source of Michigan’s previously mysterious farm scourge.
Dennis Swanson, an employee of the Department of Natural Resources, inspected the facility that produced PBB not long after its mistake was exposed. A plant executive told him the company had been monitoring its inventory carefully. But upon entering the building, Swanson spotted what looked like gravel covering the floor, a material that had literally fallen through the cracks from the second floor of the building. “I scooped it up,” he said, and took it back for laboratory analysis. It turned out to be pure PBB. Swanson also took three samples of water from the Pine River, which flowed past the plant, and captured some catfish. When analyzed, they all tested positive for PBB.
The Company’s negligence was causing two environmental disasters simultaneously. Locally, PBB – and, it was later discovered, DDT – smothered the bed of the Pine River for miles downstream, and the plant site itself was seriously contaminated.
The attention of state officials, the national news media and Michigan citizens was concentrated on the fact that PBB had entered the state’s food chain, entering the body of anyone who drank milk or ate chicken or beef from the affected farms. Millions of citizens took PBB into their systems.
But what were the health effects of PBB?
Scientists knew almost nothing about this angle, since the chemical had entered commerce so recently. It was clear that some dairy herds were severely affected. As a precaution, the state ordered the slaughter of the most highly-contaminated cattle, hogs and chickens. Burial of the PBB-tainted animals touched off another controversy. The burial finally went ahead, but only in the teeth of local resistance.
In an age when other issues were commanding public attention and chemical manufacturers had spent considerable sums trying to remake the image of their products, falsely reassuring messages about PBB’s impact on human health were passed along in the 1980s and 1990s by the same news outlets that had trumpeted PBB as a catastrophe in the 1970s.
Largely through federal funding from the Centers for Disease Control and Prevention, the state for more than two decades maintained a study group of over 3,500 persons from the most highly exposed farm families in the state. Researchers reported in 1995 that women from the group with higher levels of PBB in their blood had an increased risk of developing breast cancer. A second study published in 1998 revealed higher risks of digestive cancer and lymphoma among members of the group with higher PBB blood levels. A third study suggested that girls born to women who had the highest levels of the chemical in their blood reached menarche six months earlier than those whose mothers had been less exposed. This raises the question of whether PBB’s effects may include damage to reproductive health in the second or later generations of the most exposed families.
Tragically, some of the chemicals that replaced PBB in commerce also proved to be a threat to the environment and human health and have been banned or are being phased out. Known as PBDEs, these chemicals have been shown to persist in human blood and tissue and may pose a variety of serious health impacts.
Our regulatory system has repeatedly allowed into commerce chemicals that threaten our health. Last week’s PBB story is a reminder of how such misguided policies can have lasting, multigenerational impacts that could be avoided through precaution.
There’s no question that this is a tough time to be an environmental lawyer. Just Google “roll back of environmental regulations” and you’ll get hits like “67 Environmental Rules on the Way Out Under Trump” or “A Running List of How Trump is Changing the Environment.” And that’s just a tiny snapshot of what’s happening at the federal level. Here in Michigan, in the heart of the Great Lakes, we also are witnessing a wholesale attack on groundwater laws for big ag, rulemaking authority for environmental agencies, and even the Great Lakes Compact.
But I’m also a historian of sorts where I voraciously hunt for glimmers of hope. I look for those stories that demonstrate human innovation, collaboration, and desire to take risks, do good for the planet, and imagine the impossible.
Lo and behold, I found one of these gems the other day. It was a news story about five water utilities in the Great Lakes competing with one another to reduce their energy consumption and air emissions. These select water utilities are using technology to track and then shift to lower polluting power sources that reduce lead, mercury, carbon-dioxide, sulfur dioxide, and nitrous oxide emissions from the atmosphere. Using new technology called Locational Emissions Estimation Methodology (LEEM) designed at Wayne State University, these water utilities opt to pump water when the lower polluting electric power sources are online. As a result, a Wisconsin utility has reduced its mercury emissions by 25 percent by pumping water at off-peak hours and alternative times in a day.
Liz Kirkwood, Executive Director
Imagine if we saw this kind of competition across all sectors in health, energy, agriculture, industry, food, and water. Imagine that we all saw ourselves in a race to the top, bringing everyone up together. Let’s keep thinking big, and in the meantime, let’s give three cheers to these communities that are leading the way: Bayfield; Detroit; Ann Arbor; North Syracuse, New York; Highland Park, Illinois.
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.
[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).
Although the snow currently falling from the sky would have us believe otherwise, spring is on the way. Tuesday, March 20 is officially the spring equinox, transitioning us out of the stagnation of winter and into the movement and growth of spring. This time of year, the vernal window, brings so many opportunities for observing growth and change. Here are some classic Michigan signs of spring to get you excited for the warmer days, longer hikes, bike rides, and cherry blossoms on the way.
Look
Spring is a time of color and growth. One of the first signs that spring is approaching is willow trees turning yellow before growing their leaves. We will soon see squat skunk cabbage popping out of the soil, with just about every color wildflower you can imagine following behind. If you live in northwest lower Michigan or the Upper Peninsula, keep a special eye out for the Michigan monkey flower, an endangered species native to Michigan. Only found in 15 locations in the world, Michigan monkey flower is extremely rare, so if you are lucky enough to find one, be sure to observe it carefully!
Listen
Spring also marks the northward migration of songbirds, waterfowl, and raptors throughout the state. Some of the first songs you will hear are the familiar American robin and the distinctive sounds of red-winged blackbirds returning to Michigan’s marshes. Listen for mallards and other kinds of waterfowl as ice on the lakes begins to melt away. As the days warm, keep your ears out for spring peepers. These small frogs live near ponds, swamps, and wetlands and have a call that would make you believe they are much larger than one inch long.
Smell
Though the traditional smell of spring is a damp, earthy scent, its earliest indicator is more often the pungent skunk. Skunks spend the winter denned in a state of torpor, a milder form of hibernation. As temperatures warm and food becomes more readily available, these stinky mammals emerge, bringing with them a very distinctive smell of spring.
Taste
For many Michiganders, one of the earliest (and favorite!) signs that we are moving out of the winter months are the ice cream shops reopening. These early cones offer the promise of warmer months to come. After the snow melts, morel and ramp hunting is a popular activity for many. These wild edibles are a delicious addition to just about any meal.
Touch
Although “mud season” doesn’t usually have a positive connotation, spring is the season to embrace the dirt. Feel the soft moss at the base of a tree. Build a mud castle with your kids. Touch a tiny, new leaf. Spring brings with it infinite possibilities to get out and experience nature.
In this space two weeks ago I demonstrated that plans by President Trump and Governor Snyder to rebuild our deteriorating public Infrastructure will force shrinking or financially strapped cities and towns to turn to private water companies and investors. The Trump plan would cut the historical federal 75 percent share of grants or low interest 2 percent loans to 25 percent, and then fund only 20 percent of the $800 billion that’s needed to fix our country’s water infrastructure. Snyder’s Michigan plan would provide state funding of approximately $110 million a year, or only 10 percent of the $1 billion a year that’s needed to maintain and restore Michigan’s infrastructure. It looks like “trickle-down” financing for our cities and towns, with residents facing greater financial burdens and higher risks to health or even loss of water from their taps.
In short, local governments and their residents will be left little choice but to turn to Wall Street investors or large private water firms like American Water Works, Aqua America, and American States Water Company. A number of international water corporations want to seize an even larger control of water supplies, infrastructure, and the revenues from ratepayers. These include Suez, RWE or Thames, Vivendi, and Veolia. Large equity firms are also looking for attractive investments that take advantage of attractive municipal water revenue streams. The reality is that the life expectancy of a large portion of our country’s geriatric public water infrastructure is short, and the move to remove legal or perhaps constitutional barriers to the comingling or outright ownership by private corporations and investors poses a major challenge in the years ahead
Most of our Municipal Water Systems Are Public
About eighty-five percent of municipal water systems in this country are publicly owned and controlled and accountable to residents under constitutional and public governance. Private water corporations own or control the other 15 percent. In the last few years, the experience or prospect of private ownership of public water—Detroit water shutoffs and Flint lead and health crisis– has fomented public opposition if not outrage. Cites like Indianapolis, Pittsburg, and Missoula are taking back their pumps, pipes and taps because of inefficiencies, lack of governance or accountability, high water rates, or broken promises to repair broken infrastructure. Missoula went so far as to exercise condemnation to reclaim its water and water system from the Carlyle Group.
On the other hand, the private sector has increased investment or ownership in public water utilities five-fold in the past 10 years through claims of efficiency, productivity and service, and stable water rates for residents and customers. Private firms argue that private markets bring about efficiency and lower water use; more recently, the private sector claims that because governments are not willing to raise taxes and monies to finance public infrastructure, private equity firms offer a pathway to amassing the vast sums of money necessary to rebuild and repair our infrastructure.
In order to make this pathway more attractive, some states like Pennsylvania and Illinois have passed laws to remove traditional barriers to private investment. For example, municipal water system revenues are protected from raids by the local government council to transfer monies into the general fund. In addition, valuation of municipal water systems is often based on a cost-based accounting discounted for the remaining life of assets. As a result, to make privatization more enticing, Pennsylvania passed a “fair value” law that increases the fair or market value of the water system assets to generate more revenues from a sale for cities faced with financial failure or shortfalls; this included a relaxation on transfer of money from a sale of the system to the general fund.
Privatization or Public-Private Partnerships
The jargon coming from big water companies, private investment firms, the World Water Forum, World Bank, and governments influenced by a “privatize-everything” ideology is called “PPPs” or “P3s”—Public Private Partnerships. What are they?
PPPs or P3s were invented to mute the negative connotation of privatization of water or other public commons and services. They include any form of private ownership or equity investment, leasing, control, or share in revenues in public infrastructure that achieves an acceptable income stream or rate of return for a private corporations, investors, and shareholders. Private equity ownership or investment is just that—private. And if private, there is less government control and accountability. Residents must take their concerns, problems, and complaints to a private concern.
As noted by the Center for Progress in a 2016 report on P3s, PPPs involve a form of privately held investment (although the private corporation may be on public stock exchanges) and require a rate of return on investment of 8 to 14 percent, In part because the income is subject to federal income tax. By comparison, municipal or public infrastructure bonds do not affect public ownership and control of water and infrastructure for residents and customers, and the borrowing cost for municipal bonds currently is around 2.5 percent, and is not subject to federal income tax.
The point is this. PPPs are simply another idiom for privatization based on monopolistic control and private control of the money generated off the backs of residents and customers of water systems in our cities and towns. Because of this, it is important to understand a few things about PPPs or privatization of infrastructure.
PPPs or Public Water and Infrastructure
The real question remains, should public water and infrastructure be privatized? And if a municipality chooses to privatize to raise the cash needed to fix and repair infrastructure, what are the basic principles that should apply? Whether through private or public investment and control, the upgrading, repair and maintenance of this infrastructure will require close to $1 trillion over the coming decade.
Those supporting PPPs claim privatization benefits cash-short communities by offering the money needed to upgrade and repair, promote efficiency and conservation because of the private profit motive. If the Trump administration and states like Michigan squeeze communities by slicing available funds or loans to cover only 25 or less percent of the investment needed to restore our water systems and operations, there may be no choice at all.
So, what are municipalities and their residents in for? Most reports and commentators give privatization and P3s a bad grade. As pointed out by Padraig Colman in the “State of the Nation” series on privatization, The Financial Times called privatization of water “an organized rip-off,” because British companies had sluffed off sewage, polluted waters, and even charged ratepayers to pay for private debt. While less bombastic, here are some of the pitfalls of PPPs or privatization of public water infrastructure and services:
Efficiency from privatization and pricing according to markets or through entrepreneurship is less likely to occur, because the privatization does not create a market, it creates a monopoly.
Moreover, experience in general does not support the claim of improved efficiency.
Because private investors and companies have a legal duty to return money to shareholders, and because income is taxed, there is a constant pressure to raise prices to cover large capital upgrades and repairs and continued satisfactory dividends and share values. Generally, private systems charge more.
Some private acquisition contracts include financing, design, construction, and then maintenance, repairs and maintenance, and can include higher profits built into costs, higher costs of financing, and again higher rates.
Cost-cutting measures sometimes result in poor service and short-change the condition of the systems and risk public health.
Data and information about the operations are private or harder to obtain, so there is less transparency and accountability.
PPPs result in the removal of governance based on fundamental public trust in governments promoting the public interest or the constitutional rights and duties that protect the water, infrastructure, and citizens or residents from inequality, unfairness, and health and environmental risks.
What should residents, officials, public water professionals, and citizens draw from over a hundred years of public water services systems and all of this current debate between public and private ownership and control of our water? In a word, “Beware!” Beware of the dangers and pitfalls of privatization and PPPs or 3 Ps. Beware that one size does not fit all, that there are many variables, local conditions, financial and health exigencies, and the long-term public interest that come into play. Beware that if any form of privatization of public water infrastructure, water sources, or services is proposed, to insist on the following declarations or principles, whether the water system and services are public, quasi-public, or private:
Declare all water public; just because our natural public water commons enter an intake pipe does not mean this water loses its public common and sovereign status. Government at all times must manage and provide water as sovereign for the benefit of people.
Impose public oversight with a duty to protect the public service, public interest, public health, and public trust in water and the infrastructure the water passes through;
Establish rights and Impose duties of accountability, notice, participation, equal access to safe, adequate, clean, affordable public water;
Guarantee principles of due process, equal protection of law, and right to basic water service;
Guarantee affordability and equity in access and use of water by all residents and customers;
Implement fair and innovative pricing, subject to public oversight, a public utility or water board, with a statement of rights, duties, enforcement, and government process to assure safe, clean, affordable public water.
Jim Olson, President and Founder
The next article that will appear in this space on public water infrastructure will explain why water is public, why water in a public or private system must remain public, why the infrastructure itself that carries and delivers public water is subject to a public oversight and legal accountability. It will then describe some innovative approaches taken by public and other water services systems to come to address the challenges they and all of us face in the 21st century. Water, water infrastructure, and services are not just physical things or “assets.” They are a sovereign commons inseparable from the people, life, and quality of life they support.
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.
Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound, and expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.
As FLOW has outlined in its recent Great Lakes fish farming issue brief, the lessons from across the nation and globe are clear:
Non-native fish in floating cages or net-pens occupying public waters inevitably escape and compete with wild fish for food, spread disease, and threaten genetic diversity.
Private fish farms in public waterways undermine public access, recreation, drinking water supplies, sport fishing, and jobs.
Factory fish farming concentrates and releases untreated waste, excess nutrients, and antibiotics and other pharmaceuticals, spurring outbreaks of disease and algae growth.
The bottom line is that it’s the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.
It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”
Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.
