Tag: great lakes

Violation of the Public Trust: The Time Is Now for Decisive Court Action to Stop the Destruction of Lake Erie from Harmful Algal Blooms

Published on April 3rd, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

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.

Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.

Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.

Why did they change their minds? Because nature doesn’t wait. But that’s only part of it:  Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it. 

In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.

ELPC Lawsuit for Government’s Violation of the Clean Water Act

So, what else caused Ohio EPA to change its mind?  The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”

What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.

While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?

It Is Time for a Lawsuit 

The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!

So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for?  The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.

How is this done?  It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.

Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.

The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.

There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.

This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one.  When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.

Jim Olson, President and Founder

We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!

Humoring Ourselves to Get Off the Bottle

Published on March 28th, 2018 by - Blog Posts

Today at FLOW, we are launching our latest campaign. It’s called Get Off the Bottle, and it combines facts, law, and policy with good old fashioned humor about the absurd implications of bottled water, whose sales surpassed the sales of soda for the first time in 2016.  

Just think about that for a moment. Did you ever think there would be a moment in your lifetime when bottled water sales would outstrip soda sales? For some of us, the question is even more basic: did you ever think companies like Nestle, Coke, Pepsi, Evian would make billions of dollars annually by selling you tap water (which you already paid for via taxes and fees) in plastic water bottles? I don’t know about you, but I guess I spent a lot of my childhood dehydrated!

The “Get Off the Bottle” campaign is designed to get citizens thinking and to empower them to make smart, protective decisions for our Great Lakes. We raise important questions about the cost, misleading labels, flavor, safety, energy waste, harm to streams and wetlands, lack of disclosure, plastic waste and other related issues. And what better way to explore these subtle yet complex issues than with humor?

Bottled water is part of a larger conversation and awareness about interconnected issues of failing water infrastructure, water affordability, equity, and privatization. As we launch this campaign, we will get bottled water in people’s thoughts and out of their hands.

World Water Day

Published on March 22nd, 2018 by - Blog Posts

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.

MSU Extension Has No Business Supporting the Privatization of the Great Lakes

Published on March 21st, 2018 by - Blog Posts

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 farming issue 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:

  1. 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;
  2. Likely impacts from wastes, including pharmaceuticals, and nutrient loading, and;
  3. 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.

Wisconsin Water Diversion Proposal Flouts Public Trust

Published on March 20th, 2018 by - Blog Posts, Public Trust Tuesday

byzantine-empire-public-land.-trusts

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.

Racing to the Top: A Reason for Hope by Liz Kirkwood

Published on March 14th, 2018 by - Blog Posts

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.

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 - H2Olson, Public Trust Tuesday

byzantine-empire-public-land.-trusts

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 (9th 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.

Public Trust Tuesday: Private Fish Farms in Public Waters

Published on March 6th, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

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.

Two Love Letters to the Great Lakes

Published on February 28th, 2018 by - Blog Posts

LOVE LETTER TO THE GREAT LAKES:

 

I HAVE ALWAYS LIVED CLOSE TO YOU,

I PADDLED IN YOUR SHALLOWS AS A CHILD, DRINKING IN YOUR TASTE.

WAVES CARESSED MY BACK AS I WATCHED SAND ON THE LAKE BED,

PILED INTO TINY RIPPLES & DUNES…IT WAS MAGICAL!

I DREW MAPS & GAMES WITH MY BIG TOE IN WET SAND ON YOUR SHORE

AND SPENT EVERY SUMMER DAY, EVEN SOME WARM NIGHTS NEXT TO YOU.

SOMETIMES AT NIGHT I WATCHED SILENT WAVES OF “GREEN LIGHTNING” 

FAR OFF IN THE NORTH, WONDERING “WHAT COULD THAT BE?”

FAR INTO THE DARKNESS I WATCHED WHITE CRESTS OF WAVES ENDLESSLY CREEPING TO SHORE,

SCANNING THE STARRY SKY ABOVE UNTIL MY SLEEPY LIDS CLOSED

 

I LEARNED TO SAIL…

ACROSS THE WIND ON A CLOSE REACH, HEELING & “HIKING OUT” 

TRYING TO STAY LEVEL SO WE COULD SPEED

TACKING & JIBING WE ROUNDED A MARK ON A RACE COURSE,

YOUR WAVES SPARKLING AND TEASING “GO FASTER!”

WIND ON THE STERN, WE FLEW THAT CHUTE LIKE A KITE PULLING US

TOWARD ANTICIPATED VICTORY.

SOMETIMES WE WERE FORTUNATE TO SLEEP CLOSE UNDER THE FOREDECK 

FALLING ASLEEP TO YOUR VARIED & CONSTANT LULLABY LAPPING LAPPING

 

I STORED THOSE MEMORIES LIKE A MOUSE FILLING ITS CHEEKS 

WITH CORN & SEEDS FOR A COMING WINTER,

STUFFING THEM INTO PLACES I DIDN’T KNOW I HAD.

NOW CALLED BACK IN TIMES OF STRESS, IF I CLOSE MY EYES…

I CAN WATCH THE SCENE PLAY IN MY HEAD, SEE RIPPLES & SPARKLES.

FEEL MY TOE SCRIBING THE SHORE.

I AM BACK IN THE SHALLOWS, A CHILD…

I AM RUNNING BEFORE THE WIND, LAUGHING…

I AM AT PEACE WITH STARS & THE UNIVERSE ABOVE

AND I WILL FALL ASLEEP TO THE LULLABY LAPPING LAPPING

 

-Libbet Paullin Terrell

 

Red Queen Waves

 

When the Red Queen led Alice

To the chessboard field

Where horses, towers, and men and women

Common, knightly, priestly and royal

Would play their match

(This was after giving an etiquette lesson

And explaining she owned all the ways

So that none were lost without her leave)

She ran pell-mell

The child hanging on tight and trying to keep up

But the scene around them, instead of blurring

Stayed the way it was.

Had they not run that fast, she said,

The world instead

Would push them back

At a pace to make the head swim.

 

You must move fast to stay in one place.

 

Evolution, I read, works that way.

All that lives must run, fly, swim,

hide, fight, feed, grow, multiply

To keep pace with a changing world

Or else be swept away

As those in the Red King’s dreams when he wakes.

 

Alice herself would make a crossing

Playing in the place of the White Queen’s little pawn-princess,

Through an oddly organized train ride,

Wondrous insects,

A wood where names wane,

Meeting those who step out of nursery rhymes–

Two who battle over a ruined rattle and flee a crow

An egg precariously on a wall

Who works words to his own will

Two out of a coat of arms

Vying for a crown that’s not their own

Along with eccentric pieces–

The queens assume different forms

And one white knight bears many inventions–

And two familiarly mad messengers

Until she reaches the farthest space

And ascends to a crown, title and feast

All the while, there is much she must stay ahead of

Before passing through the mirror again,

All the while collecting verses…

Many of those who live in the water

Mammal, mollusc and fish…

 

In the inland sea near where I live

Sometimes the waves are strong enough

To reflect the Red Queen’s statement for me:

As all the beasts, fishes and molluscs do,

Stride, tread, cling or swim as hard as you are able

To stay in one place;

I butterfly or crawl freestyle

Just enough to keep that pace,

But only in short bursts

Before needing to rest,

Lest I collapse like a bread-and-butter-fly

That has had no cambric tea.

Yet I would often fly to it

As an aspiring snap-dragon-fly to a lamp;

For if I can’t keep a queen’s swimming pace

I go with the flow towards shore,

Leaping in the waves, swaying to and fro

As a rocking-horse-fly moves from branch to branch

(Minding large hidden stones as I go),

Wordlessly curtseying in the waves’ wake

Freely acknowledging the lake’s Majesty.

 

-Emily Baker

Great Lakes Proud

Published on February 26th, 2018 by - Blog Posts

Great Lakes Proud (GLP) isn’t just a local brand, it’s national, even dabbling internationally (with stickers spotted in South Korea, Japan, Austria, and Croatia – to name a few)  – and the work it is doing locally is adding value fit for the scale. Since 2009, the Michigan-based business has donated over $100K to Great Lakes conservation efforts, with no signs of slowing down.

Not bad for an idea that was born in the back of a car in Northern Michigan.

Austin Holsinger, a proud Michigander, grew up in the Petoskey area and has long had an affinity, and deep pride, for the Gems of the North – our Great Lakes.

Like any Great Story, GLP has fought to get where they are today. It took over 50 rejections before Austin, who was living off friend’s couches at the beginning, found his first retail partner, Roast and Toast Cafe in Petoskey, Michigan. 8 years later, he not only maintains a partnership with that first Northern Michigan business, but also hundreds of other amazing small businesses throughout the state and the Great Lakes Area. His goal is to make sure that each local community benefits from his product and while he hasn’t reached that goal (yet), he is doing good for the Great Lakes community at large!

GLP is driven by their goal of saving the Great Lakes and building the small business community. Over the years, they have partnered with local businesses, as well larger brands like Moosejaw and Patagonia’s Chicago team to get involved, raise awareness, and fundraise.

GLP strives to support Michigan’s best businesses and to promote intentional consumerism. They are so much more than just a Great Lakes sticker company (and the original one, at that). They are part of an environmental movement. By purchasing one of their unique designs, you are contributing to something much bigger – adding value to the world instead of taking from it – as 15% of all proceeds are donated to special organizations.

These stickers are the vehicle for change (for your vehicle).

GLP is excited to partner with FLOW to help foster awareness of the Line 5 issue and facilitate a way to get involved and make a change. Working closely with Daniel Sloboda from Patagonia and graphic artist, Chris Apap, GLP is excited to launch a design that spreads awareness, encourages conversation, and promotes change. Stemming from the firm belief that the Great Lakes are “a public trust – waters and bottomlands held in trust for the benefit of the public to use and enjoy,” this latest design brings the Line 5 issue to top priority.

The pattern of the sticker shows what the spread of oil would look like, and by purchasing this unique design, one is able to specifically donate to FLOW and their mission of “educating, advancing policy, and providing solutions to pressing water, energy and climate issues facing our region, nation, and planet.”

Dedicated to saving one of nature’s most beautiful gifts.

Committed to being #GreatLakesProud.

Determined to #ShutDownLine5.