In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.
Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.
The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.
Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.
The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.
Phase I of the Ogden Dunes Revetment (July 27, 2023, E. Jason Wambsgans/Chicago Tribune).
Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.
Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark.
The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem.
Save the Dunes’ appeal of DNR’s decision is vitally important.
If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow.
For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).
With Gratitude: Celebrating 10 Years of Keeping Water Public and Protected with You
This past year marked an extraordinary year for FLOW, as we celebrated a decade of keeping our water public and protected. In reflecting upon this past decade, we have much to be grateful for, even in these challenging times.
First and foremost, we are thankful for you, who have made our work possible year after year. You have understood the urgent need to steward our water as a commons protected from one generation to the next. You have seen the need for us to establish a new healing relationship with water and to apply science and the rule of law as foundational principles for making informed policy decisions that protect human health and the entire water cycle. You stood with us to take on the threats of water privatization and commodification, oil pipelines in our waters, water insecurity, an affordability crisis, chemical contamination, crumbling infrastructure, and much more.
Because of you, our movement continues to grow, forging potent alliances and partnerships with people, organizations, and governments across the Great Lakes Basin, including indigenous tribes, frontline groups, and business and community leaders. In the next decade, it will take all of us rowing together in the same direction to secure the kind of durable and lasting water policies needed for these globally unique and magnificent Great Lakes.
We give thanks to FLOW founder Jim Olson for his visionary legal thinking, leadership, and passion in founding a nonprofit wholly dedicated and committed to protecting water as a shared commons for all peoples from one generation to the next. His lifelong dedication to clean, safe, affordable, and public water has never faltered. Jim’s work continues to this day. We cannot begin to thank him enough.
We give thanks to our current and past board members and advisors, who have been tremendously helpful in charting our visionary policy work and establishing our unique public interest voice across the Basin.
FLOW Executive Director Liz Kirkwood
We give thanks to our staff for lending exceptional talent and devotion to Great Lakes protection every day. Our staff brings heart and soul to this challenging and rewarding work, drawing on decades’ worth of law, policy, and communication experience to improve the future of all living creatures and communities in the Great Lakes. And our policy work is richer thanks to a decade of amazing interns, volunteers, visual artists, writers, performers, and filmmakers sharing their gifts.
We give thanks to our partners, allies, and friends who share our core values and goals, working to secure water for all, and who bring diverse and rich perspectives to solving complex issues.
The next 10 years are critical, with urgent solutions needed to protect water and public health from the climate crisis. We want you to know that your unwavering support and commitment make all the difference.
Board Chair Renee Huckle Mittelstaedt
We thank you for empowering our work for the last decade and for standing boldly with us in the next 10 years. Our pledge to you remains the same: We are committed to law, science, facts, and truth. We focus on empowerment for the common good and public interest. We speak for the water. We include all persons and succeed together.
Our warmest wishes to you,
Liz Kirkwood and Renee Huckle Mittelstaedt
Please watch this video below of Liz and Renee thanking FLOW supporters and unveiling our 2020-21 Annual Report:
“FLOW is responsible for the major success we’ve had so far as a movement in halting the Line 5 pipeline that crosses the Straits of Mackinac,” said FLOW senior policy advisor Dave Dempsey in this testimonial about the impact we’ve had during the past decade.
During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has meant to them and to the freshwaters of the Great Lakes Basin.
“Without the public trust doctrine that Jim Olson and Liz Kirkwood have been advocating, that pipeline would be set to operate for another 50 years, and I think we’re in a position to shut it down, thanks for FLOW’s work on this. I think of the public trust doctrine as the key that can unlock all the environmental doors for us. It can protect our water, protect our air, protect us from climate change. It’s the secret weapon.”
Watch a video below of Dave Dempsey’s testimonial:
“It was 10 years ago that I first met Jim Olson, and I invited him to be a guest speaker for Green Elk Rapids,” recalls Royce Ragland, the organization’s co-founder and a founding FLOW board member. “He talked about his favorite thing—the public trust. I was just so taken with the idea. It’s an old thought. It combines everything from policy to stewardship to theology to philosophy. I loved it.”
For 10 years FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has mean to them and to the freshwaters of the Great Lakes Basin.
“FLOW gave me an understanding of the importance of policy,” said Ragland. “It gave me an appreciation of the role and the link between policy, which is what FLOW works so mightily on, and the role of everyday life and needing our water, caring about our water. It just merges it all together.
“I chair the planning commission in Elk Rapids, where we seek to raise awareness about environmental ordinances—especially water ordinances. This is the work of everyday citizens trying to alert each other about how we need to take care of these issues, these elements. When friends and neighbors know you’re involved with an organization or a board, it’s an endless opportunity to educate.
“It’s easy to take it for granted. It’s easy to lose an understanding for how policy relates to laws and legislation and advocacy.”
Watch Royce Ragland’s FLOW video testimonial below.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.
Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.”
State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations
After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.
The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.
The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case, Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”
Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust
When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.
Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use. No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.
Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.
State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes
Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.
There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes.
The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.
The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.
Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.
The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”
The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.
The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.
It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.
The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.
Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action.
The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.
Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.
Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case.
That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person.
Line 5 passed that threshold many years ago.
To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.
Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries.
There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.
A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.
This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount.
Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.
The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.
Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.
Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.
The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.
Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.
In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?
Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.
I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.
However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.
The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine
First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature..
Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.
Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.
Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.
Michigan a Forerunner with the MEPA
In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, seeThe MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust. Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm. The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.
If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.
In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:
It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”
While legitimately showcasing much good news about policies and programs benefiting the Lakes, the report joined the ranks of many that don’t say enough about the conditions of the Great Lakes themselves.
It wasn’t supposed to be this way. When the Michigan Legislature and Governor in 1985 enacted a statutory requirement for an annual report on the state of the Great Lakes, they envisioned a science-based report card on the health of the waters and related resources of the Lakes themselves. Which pollutants are increasing and which are decreasing in Great Lakes waters? What are quantitative trends in beach closings and key populations of critical aquatic species? What indicators of climate change are manifesting in the Great Lakes?
But almost since the first day, and especially under former Gov. John Engler, Michigan’s Great Lakes report has amounted mostly to agency self-praise for a job well done.
Likewise, other Great Lakes institutions have had struggles coming up with objective indicators measuring the health of the Lakes, although they are now making some progress. Under the US-CanadaGreat Lakes Water Quality Agreement of 2012, the two nations are required to issue a State of the Great Lakes report every three years. Released in May, themost recent report finds:
“Overall, the Great Lakes are assessed as Fair and Unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species. The continued actions of many groups and individuals are contributing to the improvements in the Great Lakes.”
The assessment may be overly generous — but even if accurate, its “fair and unchanging” verdict translates at best to a C+. That is far from great effort on behalf of the Great Lakes. We can and must do better.
Back to the new Michigan report: It doesn’t attempt such a report card, but does deliver interesting news on drinking water rules for PFAS and other contaminants, high Great Lakes water levels, Asian carp and research on harmful algae blooms. As a “State of Great Lakes Programs” report, it offers some food for thought — but it doesn’t tell you scientifically where the health of the Lakes is headed.
One highlight of the EGLE report, however, is a discussion of the public trust doctrine, FLOW’s central organizing principle. The report observes:
“The basic premise behind much of the Great Lakes legal protection is the idea that surface water itself is not property of the state, but a public good. Over the years, a number of court cases have firmly established this legal principle, known as the ‘public trust doctrine.’ The public trust doctrine means protecting public water resources for the use and enjoyment of all. Under the public trust doctrine, the state acts as a trustee who is empowered to protect the water.”
We applaud EGLE’s recognition of its trustee role, and encourage Gov, Gretchen Whitmer and EGLE Director Liesl Clark to rely on the public trust doctrine to guide them as they consider their decisions on Line 5, Nestlé water withdrawals, and other weighty matters.
Sometimes Michiganders take for granted the abundance of water that surrounds us and flows beneath us. In the midst of Michigan Great Lakes and Fresh Water Week (August 8-16), reflecting on that endowment is timely.
We often forget that a large proportion of Michigan is underwater. Considering only the land area of Michigan, it’s the 22nd largest state; add in the more than 38,000 square miles of land underwater that belongs to Michigan in four of the five Great Lakes, and Michigan vaults to 11th place. In fact, Michigan has more land underwater than Indiana has above water. These lands and the waters over them are protected by the public trust doctrine and are to be protected in a manner that does not impair public uses.
The sheer size of Lake Superior is also not to be taken for granted. The largest lake by surface area in the world, Superior is as large as the other four Great Lakes—plus three additional Lake Eries.
Groundwater is often overlooked because we see it only when we use it. But it supplies 45% of Michigan’s population with drinking water, and the volume of groundwater in the Great Lakes basin is equivalent to that of Lake Huron—making it, in FLOW’s analogy, the Sixth Great Lake.
Michigan has over 36,000 miles of streams and rivers, 11,000 inland lakes, and approximately 6.5 million acres of wetlands (down from approximately 10.7 million acres before European settlement began).
Finally, Michigan has about 3,300 miles of Great Lakes shoreline. (For comparison, the flight distance from Detroit to Los Angeles is approximately 2,000 miles.)
Michigan Great Lakes and Fresh Water Week is designed to encourage the public to take direct action to protect our waters. What will you do?