Tag: Public Trust Doctrine

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

Published on April 10th, 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.

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

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

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

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

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

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

Jim Olson, President and Founder

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

The Public Trust Doctrine in Action

Published on January 30th, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

Editor’s note: FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today’s thoughts are from FLOW’s board chair, Skip Pruss.

“We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.”   — Ban Ki-moon, Secretary-General of the United Nations, 2011 Address

It’s time that we better manage our natural resources by broadly applying the Public Trust Doctrine.

Our water, air, and other public resources are facing multiple threats and unprecedented challenges. The threats to our environment are complex and systemic, and current government efforts are inadequate and ineffective.  The public trust doctrine provides government with a framework to identify, comprehend, and address environmental threats at their root cause.

Last week at World Economic Forum (WEF) in Davos, Switzerland, political and business leaders, social activists, and philanthropy came together to assess the current state of the world and prioritize problems and solutions.

To inform the discussions of the attending global elite and set the agenda, a series of reports issued including Harnessing the Fourth Industrial Revolution for Life on Land and The Global Risk Report 2018.  The former indicates that a survey of earth systems science finds that stresses on the planet’s environmental systems have worsened considerably in the last 25 years.  The Global Risk Report – which has measured and categorized global risk annually for the last 13 years – found that environmental challenges from water scarcity, climate change, biodiversity loss, and pollution of air, soil and water now pose the greatest global dangers in terms of both potential catastrophic impacts and imminent threats.

The WEF warns that governments thus far are ill-equipped to respond to complex interactions and systemic threats that can quickly cascade into calamitous and costly events.

In the Great Lakes Region, the WEF’s warnings are validated by new emerging science:

A broader approach to address these growing systemic threats is needed; one that focuses on the public interest and on protecting human health and the environment as a fundamental guiding principle.

The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our wellbeing and must be protected from impairment and degradation.

Our nation’s highest courts have long embraced the public trust doctrine as an overarching legal principle.  In a landmark case involving Lake Michigan, the United States Supreme Court spoke unequivocally to government’s fundamental duty to protect public trust resources:

“The State can no more abdicate its trust over property in which the whole people are interested like navigable waters and the soils beneath them…than it can abdicate its police powers in the administration of justice and the preservation of peace.”

The Michigan Supreme Court has found that the doctrine establishes a “high, solemn and perpetual duty” of proactive environmental stewardship.  The protections afforded by the public trust doctrine are recognized by Michigan’s Constitution, which states: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.”  Wisconsin’s highest court has found that the public trust doctrine “requires the law-making body to act in all cases where action is necessary, not only to preserve the trust but to promote it,” and has applied the doctrine to protect public rights in sailing, rowing, canoeing, bathing, fishing, hunting, skating, and “scenic beauty.”  California’s highest court has found that the doctrine demands that the best science must inform government’s responsibility to protect public trust resources and that prior governmental decisions must even be reexamined in light of new scientific knowledge if such information indicates public trust interests are affected.

The Public Trust Doctrine at Work

Our nation’s courts have been clear and unambiguous, stating repeatedly that the public trust doctrine creates an affirmative legal duty to protect public resources from degradation and impairment.  So how might government apply the public trust doctrine to address complex and challenging environmental threats?

The doctrine operates as a shield to prevent activities that impair the public’s interest in public trust resources or conveys public rights in public trust resources to private parties.  But beyond that, the public trust doctrine also empowers local, state and national governments to proactively manage and supervise activities that threaten public resources.

It provides, for instance, government with legal authority to require septic systems to be inspected and repaired if they are failing.  If fish or aquatic resources are threatened by harmful wastes or chemicals, government is empowered to stop the pollution at its source.  When it was found in the 1980’s that the operation of the Ludington Pump Storage Facility killed large numbers of fish in Lake Michigan, the then attorney general asked the courts to require measures that abated the fish mortality.  The Michigan Court of Appeals stated, “Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.”

Similarly, Attorney General Bill Schuette could bring and action to close Line 5, the 65-year-old oil pipeline crossing the Straights of Mackinaw, because it presents a known catastrophic risk to public trust resources and waters of the Great Lakes.

The public trust doctrine could be used to address climate change by requiring utilities to transition to available, low-cost, zero-carbon energy resources.  Because clean energy is now widely acknowledged to be the energy source of the future, there is no good reason to allow the continued loading of acid gases, heavy metals, and carbon pollution into our Great Lakes, rivers and streams.

Skip Pruss

The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious.  The doctrine could provide a means of directly countering the present actions of the federal government to dismantle environmental laws and regulations.  The doctrine can also enable communities to maintain high standards for the protection of natural resources and environmental values while being proactive in preventing problems before they arise.

The public trust doctrine is uniquely compelling as a means to address large-scale complex problems.  With so much at stake, a broad application of the public trust doctrine is needed now.

I Live Near Lake Michigan

Published on December 31st, 2017 by - Blog Posts

I live near Lake Michigan.

I am among the lucky ones, as is my neighbor, Tom Shaver, who has said more than once that he pinches himself as a reminder not to take living next to Lake Michigan for granted. Like most of my neighbors, Tom has a deep appreciation for the awesome grandeur and natural majesty of Lake Michigan; its morning brilliance, stunning sunsets, ever-changing moods, and the sounds and fury of its winds and storms.

I savor the opportunity to introduce strangers to the Great Lakes – folks from outside the Midwest or from other countries who have never had occasion to experience the Lakes up close. They are invariably impressed, if not astonished. “How come I can’t see the other side?” is a common question. “You mean there is no salt?” asked an exchange student from Montenegro.

We are so fortunate as Michiganders to live in the heart of these extraordinary fresh water seas. The Lakes are a phenomenal geologic anomaly and a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are globally unique. Harboring 84 percent of all fresh surface water in North America, the Lakes provide direct health, economic, environmental and ecological services to 40 million people.

As science measures the lifecycles of freshwater bodies, the waters of the Great Lakes are largely considered both young and pristine, but the geologic timeline only obscures the many immediate challenges facing the Great Lakes.

The Lakes’ complex, dynamic ecosystems endure a growing list of human impacts. Nutrient loadings from industrial farming propagate algae, stormwater overflows discharge human waste, and elevated water temperatures transform ecosystems – all injurious impacts exacerbated by climate change. New science reveals that fish and other aquatic life are affected by recently discovered, yet ubiquitous, pharmaceutical chemicals and microplastics still concentrating in our waters. Invasive species, shoreline development, and non-point source pollution present intractable, long-term challenges. Commodification and privatization of the waters of the Great Lakes present serious future risks.

The threats to the Great Lakes are manifold, diverse and systemic. Meeting these threats requires concerted action by informed citizens and responsible government operating with common purpose and employing common strategies. It requires citizens and government policy-makers who understand that the Great Lakes – their waters, bottomlands and shorelines – belong to all of us, and that government has a clear legal duty to protect and preserve the Great Lakes for the benefit of the citizens they serve.

FLOW’s mission is to safeguard the Great Lakes through strategic application of the Public Trust Doctrine. The PTD establishes three principles that are deeply embedded in our jurisprudence:

  1. The Great Lakes are owned by the people;
  2. The people’s ownership interest is held in a legal trust for the benefit of the people;
  3. Government has a “solemn and perpetual” fiduciary responsibility to protect and preserve the trust for future generations.

With public ownership comes special duties of stewardship for both citizens and government – duties that are reciprocal and interdependent: Citizens have the responsibility of protecting and preserving this natural endowment for future generations through vigilance, holding government accountable, and demanding sound policy. Government has a corresponding duty as trustee and fiduciary to ensure that the public’s interest in the Great Lakes is not injured, diminished, or alienated.

The Public Trust Doctrine is a foundational principle that has long informed the development of our environmental laws. It is also a paradigm that can and should be extended to imminent societal challenges like water scarcity and climate change.

Skip Pruss, FLOW Chair

FLOW’s unique contribution is to use the Public Trust Doctrine to cultivate principles of good stewardship by increasing public awareness and knowledge of the Great Lakes, by nourishing the mutual inclination of citizens and government to protect the waters of the Great Lakes, and by undertaking strategic actions based upon the doctrine to advance model policies that yield real world solutions.

Protecting and preserving the integrity of our water resources is our common bond and shared responsibility to future generations.

FLOW Board Member Calls HB 4205 Contender for Worst Michigan Environmental Bill of 21st Century

Published on May 4th, 2017 by - News

The Michigan legislature has introduced what is a sure contender for the worst Michigan environmental bill of the 21st century.  The bill, HB 4205, would prohibit all state agencies from promulgating any administrative rule that is more stringent than an applicable federal standard.  With the federal government actively seeking to dismantle historic environmental protections by lowering or eliminating a whole host of environmental standards, HB 4205 could result in irreparable and irrevocable harm to Michigan’s priceless natural resource heritage.

We cannot assign the responsibility to protect Michigan’s natural resources to the federal government.  We cannot surrender the safeguarding of Michigan’s natural resources to an administration that is contemptuous of efforts to protect land and water resources and boasts of its eagerness to eviscerate existing environmental rules. 

The Trump Administration’s pledge to repeal two administrative rules for every rule promulgated and its promise to use the Congressional Review Act to void environmental regulations are indicators of the potential harm HB 4205 could create.  The Trump Administration’s roll back of 23 environmental rules in its first 100 days is harm already incurred.

Michigan’s natural resources are globally unique, requiring vigilant protection and stewardship.  Our Great Lakes hold 20 percent of the world’s supply of fresh surface waters and harbor distinctive, specialized watersheds.  Our shoreline of 3,288 miles is by far the longest freshwater coastline in the United States, shaping coastal dunes that are singularly unique natural features.  Science affirms that our inland lakes, rivers, streams, and wetlands are an integrated, interconnected, mutually dependent hydrologic system providing immeasurable services and benefits to all citizens.

In all, Michigan’s natural resources are magnificent, unparalleled and sublime – a natural endowment demanding extraordinary legislative safeguarding.  HB 4205 is antithetical to Michigan’s values, laws and environmental legacy.

HB 4205 has eleven legislative co-sponsors.  Their support of this bill is irreconcilable with their constitutional responsibilities.  Michigan’s Constitution explicitly defines the primary duty legislators have to protect Michigan’s natural resources.  Article 4, Section 52 of Michigan’s Constitution states:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.  The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.

Complementing this constitutional mandate is the Public Trust Doctrine, embodying a set of foundational principles, long recognized by law, that require proper stewardship of Great Lakes resources.  The doctrine creates a fiduciary responsibility of stewardship on the part of government for the preservation of these resources for the benefit of the public.  Described in Michigan jurisprudence as a “high, solemn and perpetual duty,” the Public Trust Doctrine creates a foundational, unifying, coherent legal framework for defining and prescribing rights, obligations, duties and responsibilities for protecting public resources that government – and the legislators behind HB 4205 – cannot ignore. 

Please encourage your friends and family to contact the eleven co-sponsors of HB 4205: 

Triston Cole – (primary), Jim Runestad, Aaron Miller, Kathy Crawford, Michele Hoitenga, Steven Johnson, Peter Lucido, Beau LaFave, Tom Barrett, Sue Allor, John Reilly.

Stanley “Skip” Pruss co-founded 5 Lakes Energy in 2010, specializing in energy policy and clean energy system development.

The Intrinsic Value of Water and the Public Trust Doctrine

Published on March 22nd, 2017 by - H2Olson

March 22, 2017


World Water Day

Let us ask ourselves today, on World Water Day – led by the United Nations, Watershed Movement, and the Vatican, with the assistance of organizations like Circle of Blue and the World Economic Forum, and many others – just what is the value of water and life? How will we face the world water crisis worsened by greenhouse gases and climate changes?

Everywhere we look, the need for water to survive competes with other uses, and is made more desperate by climate change, droughts, flooding, and rising sea levels. The water crisis is destabilizing countries and communities, leading to insecurity and even war, as we’ve seen unfold in Syria and neighboring countries in the Middle East. Here in Michigan, a similar picture has emerged, as thousands of impoverished Detroit residents struggle to survive in the face of water shutoffs.

In the face of this, there is a cry for the recognition of the human right to water. The United Nations, through two resolutions, has recognized the human right to water and sanitation, yet countries routinely ignore it. Large private interests push for ways to control water, diminishing or opposing the human right to water in favor of serving their own needs and profit motives. And the health of millions of people continues to be threatened.

Value of Water

So the question becomes, just what is the value of water? What are our shared rights, and what of our responsibility to see that climate does not overwhelm the earth, leaving it unfit as a home for our children and other species? What private uses could possibly subordinate the paramount fundamental value of water and life, family, children, health and the common good for people now and for future generations?

The value of water is intrinsic, it is valuable in and of itself, a gift. It is common to all, yet necessary for each person, plant, and animal. Water falls and percolates and flows over the earth, forms springs, wetlands, creeks, streams, lakes, and oceans, and all along the way, of necessity, water flows in common to all life along either side of the watercourse. Water flows and defines watersheds, and watersheds define the ever-present nature of the water cycle. Water falls into the watershed and collects, evaporates, transpires, or flows out of the watershed. Every watershed is a unique building block of life on earth. If the integrity of water and watersheds is protected from harm, from one generation to the next, if it is assured above all rights, needs, and competing use as a commons for all, for the common good, then there is a basis for life to sustain itself now and into the future.

How do we protect the intrinsic value of water as commons for the common good and for each person, plant, animal, and community in a watershed?

Public Trust Doctrine

The answer lies in an ancient principle, drawn from Western civilization, but recognized through custom, culture, and heritage throughout the world, known as the “public trust doctrine.” In modern times, this doctrine was uncovered and elevated by the late Professor Joseph Sax in his seminal 1970 article in the Michigan Law Review. Professor Sax recognized that there is a set of legal principles surrounding water – whether lake, stream, or ocean – that protect its primary uses: navigation, boating, fishing, swimming, drinking, and sanitation. He envisioned a widely applicable tool to manage and address the foreseen and unforeseen threats and demands for water in the world’s future.

The public trust doctrine embodies four basic principles:

  1. Navigable waters cannot be controlled by private interests for primarily private purposes; these waters must be maintained for public purposes.
  2. These public trust waters cannot be materially impaired or diminished from one generation to the next.
  3. Governments where the water flows have a solemn and perpetual duty to protect the integrity of the quantity and quality of water from exclusive or dominant private control and impairment.
  4. Citizens, the people who live in a state or watershed, have a right and duty as beneficiaries to see that these principles are respected and honored.

If we as people, collectively and individually in our watersheds and communities, adhere to these principles, we will respect, honor, and protect the intrinsic value of water. In doing so, we assure water will be available and sustainable for everyone, including the least of us. If we do this for each watershed and the hydrosphere, we will assure that water is protected for the common good and each person of this and future generations. If we do this for the common good, the various competing uses and needs will be subordinate to the overarching public trust, and accommodated within the larger framework.

Public Trust and the Great Lakes

For example, the International Joint Commission, an international body charged by a treaty signed by Canada and the United States to protect the quality and flows and levels of the waters forming the boundaries, or flowing in and out of the two countries, released a report in 2016 on the protection of the Great Lakes in North America. These lakes, together with the St. Lawrence River basin, contain more than 20 percent of the world’s fresh surface water. The IJC recommended that to face the systemic threats to the Great Lakes in the coming decades – climate change, water levels, algal blooms creating massive “dead zones,” privatization and export, invasive species, waste from water mining, virtual water loss associated with other land uses such as farming that export products to other countries – that the two countries, eight states, and two provinces implement public trust principles as a “backstop” to other efforts, voluntary and regulatory. Why? Because, to assure protection and balancing of all needs and uses, there must be a common set of all-encompassing principles that catch the wild pitches, the errors, the miscalculations; in short, principles that like a lighthouse beacon keep societies, communities, businesses, and people from going off course or smashing on reefs.

Take, for instance, the Lake Erie “dead zones” caused by inadequately treated waste and a combination of climate change rainfall events and heavy phosphorous runoff from farms. In 2011, the western one-third of this lower Great Lake turned into an green toxic soup of algae, killing fish, impairing fishing and swimming, and harming tourist and water-dependent businesses. In 2014, algal blooms mushroomed again, this time closing down the drinking water system for 400,000 people in greater Toledo, Ohio. By honoring the public trust rights and responsibilities defined by public trust principles, theses systemic threats and their causal connections – phosphorous discharges and climate change – can be seen as a fundamental violation of the common good of water. By first protecting water as a commons through these public trust principles, everyone is equally required to adjust behavior to conform to the paramount obligation to protect the intrinsic value of water.

For this World Water Day, let us protect water and the human right to water as a commons and public trust. Let us move from competing public and private uses to well recognized rights, under an overarching framework of respect and responsibility. A public trust framework could provide the bridge between the intrinsic, real value of water, and the needs and uses for water on which all life depends.

The intrinsic value of all water, like life, is a gift from God, and compels us to protect water for the common good, now and for future generations. If we do this, we will make wise decisions about water, food, energy, economy, community, and peace and security. Let us start with recognizing and respecting the intrinsic value of water.

Jim Olson
President and Founder
FLOW (For Love of Water)