At the core of its plain meaning, public trust means that future generations depend on us – trust us – to protect the water, air, and land upon which their wellbeing will depend. Public trust principles are enshrined in law. The people who serve in positions of leadership and authority are legally responsible to all of us and to our children for protecting the vital natural resources that we all own in common. It’s really not that hard to understand. If only being able to grasp the principles of the public trust doctrine was the end of the story.
Here’s a big-picture story that, for me, underlines the value and importance of public trust principles and public trust law to help protect the natural, social, and cultural resources upon which healthy and prosperous human communities depend:
The global population is booming. The global climate is changing, becoming warmer. Demands for fresh water are increasing and fresh water is becoming increasingly scarce. Water is becoming increasingly commodified, monetized, privatized, and politicized. Not every influential leader and organization believes that water is a human right, so there is a real and growing struggle for simple access to water. Even if people believe that access to fresh water is a human right, we don’t have in place shared protocols that will protect the water commons from tragic misuse.
We read this story locally in the affronts to public health, social justice, and responsible leadership that the water debacles in Flint and Detroit have tragically revealed. We read it in proposals to operate concentrated fish feeding operations – fish factories – in our lakes and rivers. We read it in actions by Nestle and other water-raiders that come back again and again to capture and carry off Great Lakes water. We read it in the protection of land-use practices that contaminate groundwater and feed toxic algae blooms in the Great Lakes. And we read it very clearly in the lethargic leadership that seems more willing to protect corporate interests in using Great Lakes water as a host for oil pipelines than to protect Michigan’s public interests in the ecological and economic value of water itself.
It is clear that many of the most important chapters in the story of water are being written right here in the Great Lakes basin. The Great Lakes encompass 20% of the fresh surface water on the planet. The waters of the Great Lakes directly service 40 million residents of the U.S. and Canada. Risks to the integrity and viability of the Great Lakes as a hydrological system are increasing. Those of us who live in the Great Lakes basin today have an affirmative duty to protect water, and the risks to that water are global and systemic. Public trust doctrine and law are tools for the execution of that duty.
The public trust doctrine tells us and empowers us to act as stewards of the unique and irreplaceable repository of fresh surface water. The Great Lakes watershed, in a very real sense, is a proving ground on which human leaders and communities are testing the proposition that it is either possible or not possible to create water-smart blue communities and vibrant blue economies. The proof of the proposition and the story of water that we leave to our children rests on our ability to empower ourselves and our fellow citizens to become water-literate lovers of waters, to educate and support water-responsible leaders, and to demand that decision-makers in the public and private sectors exercise their duties as trustees to protect the natural resources and public beauties that future generations will inherit.
What do you think?
Mike Vickery serves as vice-chair of FLOW’s board and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building. He is an Emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.
Mike holds a PhD in Communication. His graduate work focused on public discourse and controversies related to technical and social value-conflicts. He has taught graduate and undergraduate courses at the University of Texas-Austin, the University of Arizona, Texas A&M University, and the University of Wisconsin-Eau Claire. His areas of teaching, consulting, and applied scholarship include environmental rhetoric, risk communication, public health communication, and organizational communication.
Raised on Schoolhouse Rock!, I learned from a very young age that “knowledge is power.” While at first just a witticism I repeated in the show’s quirky inflection, the saying soon became real. This was one of the first bits of power I acquired, and I ran with it.
I learned to read at a young age, and I soaked up anecdotes and information as best I could. Though nowadays I enjoy spending my naptimes actually napping, I spent them as a youth reading rather than snoozing, and I quickly gained the wisdom of the Hardy Boys and Encyclopedia Brown. I memorized my favorite poems, by the great Shel Silverstein.
When I did not become the most powerful of all from this process, I realized that there are other forms of power as well. Unfortunately, not all of these other forms of power are as gentle or as honest as knowledge. Nonetheless, I always found the power of knowledge to be a worthy adversary, the one that wins out in the end, and I have stuck with it.
As an individual, the greatest way to impact the world I have found is through spreading that knowledge. It is the power that expands and grows as it is shared.
In my everyday life, I learn what I can. What is happening to the waters in our Great Lakes? Who is responsible for the decisions that impact the Lakes? Even simply: where does my drinking water come from? I do my best to distribute this power to friends, family, and even strangers. Though I do run into opposition, this is often excellent for the sake of knowledge. A debate often only leads to more knowledge gained on both ends.
If I see a friend of mine planning to purchase a plastic bottle full of water to accompany his sandwich for lunch, I will interrupt to offer my knowledge as well as several alternative solutions. Perhaps he could sip from the drinking fountain in plain sight. Or he could go grab the reusable water bottle in his nearby car. Or he could ask for tap water in a glass instead of bottled water.
These alternatives not only support the wallet, they support the health of the Great Lakes, and the right for safe, clean, and accessible water for everyone. Water is public. Water is a human right, and we should not be paying to allow a private company to profit from our water.
Nayt Boyt
We must share this knowledge, that the Great Lakes and their waters must be protected for our uses. That the ancient but relevant Public Trust Doctrine reinforces the fact that our leaders must protect those waters for our uses. We must first acknowledge any threats to these waters, and then eliminate them, so that this treasure will be here for our use and enjoyment, for our livelihood.
I expand my power of knowledge to you today, and by extension, to the people you interact with. The next time you plan to grab a bottle of water, or see another who does, consider the alternatives. Make sure the actions in your life support a thriving future for the Great Lakes, and for all of us.
A big lake requires a big book. Lake Superior, the largest lake by surface area in the world, now has one. Nancy Langston’s Sustaining Lake Superior: An Extraordinary Lake in a Changing World offers a sweeping panorama of the lake’s environmental history, its present challenges and a glimpse of the future. A professor at Michigan Technological University in Houghton, Langston is a highly regarded environmental historian and analyst who moved to her current post in part to be closer to the big lake.
We asked Nancy to talk about her book, which is available for purchase via http://www.sustaininglakesuperior.com/. Nancy is donating all proceeds she receives from book sales (after costs) to local nonprofits working to protect and restore Lake Superior and the other Great Lakes. So far, she has donated proceeds to the Keweenaw Climate Community, Friends of the Lands of the Keweenaw, and the Great Lakes Research Center Student Fund. She’s happy to do book talks and signing for Great Lakes groups and donate the profits from book sales to the local group. Email her to arrange this: nelangst@gmail.com.
If you could boil your book’s message down to a paragraph, what would it be?
Here are two paragraphs: we are not remote; and we are not pristine—and we can learn from past recoveries.
Lake Superior may seem remote, but its waters are intimately connected to the rest of the world. Atmospheric currents bring chemicals from China, and pressures to mine iron ore in the basin are driven not by local or national markets, but by a boom in China’s steel industry. Yet, while the processes that shape contamination have global roots, the effects are local. Mountain-top removal mining for China’s iron ore demands would devastate local wetlands that have sustained the Anishinaabeg for many generations. The toxaphene from Chinese, Russian, and African fields accumulates in the fish that swim under my cliff and makes its way onto my plate. What is global—financial markets, building booms, industrial farming practices in places with few environmental regulations—becomes local in the most intimate ways, as it accumulates within our watersheds and within our bodies.
Everyone thinks Lake Superior is pristine, but it’s not. Lake Superior has witnessed significant recoveries in my generation, after near collapse during rapid 20th century industrialization of the Great Lakes. Forests and many of their inhabitants have returned after the devastation of the lumber era. The toxic waste sites left after the paper and mining booms have partially been cleaned up. Lake trout—once nearly extinct– spawn abundantly in the lake once more, one of conservation’s great success stories. None of these recoveries is complete, to be sure—but we can learn from the conservation recoveries of Lake Superior over the past century, as we face new challenges of persistent pollutants that are mobilizing with climate change. Communities around Lake Superior have long struggled to address pollution concerns, and local, regional, and international efforts met with significant successes in the late 20th century. Exploring the success—and failures–of pollution control in the past can help us devise resilient strategies for facing the challenges of pollution in a globalized, warming world.
How long has the book been in the making and what inspired you to write it? Is it true you moved to Michigan Tech because you want to be close to Lake Superior?
I fell in love with Lake Superior in 2003, when I bought a tiny cabin on the shore just outside the Apostle Islands National Lakeshore. This was really just a shed without running water or heat or electricity, and there’s still no place on earth I’d rather be. I’ve spent at least four months in the cabin every year since. (Since then, I’ve put in electricity, but we still haul water from the village artesian well and harvest rainwater from the roof for showers). At the time, I was a faculty member at UW-Madison, living on my husband’s small farm south of the city and commuting to Lake Superior every chance I got.
The summer of 2010, I started research on an environmental history of boreal forests, with one case study focused on Lake Superior’s forests. I spent a month that summer in different small communities around the Canadian shore of Lake Superior, researching the history of the paper industry and kayaking when I wasn’t in the archives. That fall, I joined the Lake Superior Binational Forum, a public stakeholder group tasked with implementing the Great Lakes Water Quality Agreement’s core idea that citizen oversight could protect the lake and foster sustainable development. A Binational Forum visit to the Pic River First Nation reserve near Marathon Ontario in November introduced me to the concerns that Anishinaabeg communities had about new mining projects.
In early 2011, soon after Wisconsin Governor Scott Walker began his deconstruction of the environmental protections that had made Wisconsin famous, I joined a group of academics who visited the Mole Lake Sokaogon tribe in northern Wisconsin. In the 1990s, the tribe had defeated a mine project just upstream of the reservation. My colleagues and I were eager to learn how the tribe had translated their health concerns into political action. As the meeting began a dozen leaders from another tribe, the Bad River Band, filed into the crowded room. They had driven three hours to recruit allies in their fight against an enormous open pit mine proposed near their reservation. Much of the discussion at our meeting with the Mole Lake Sokaogon and Bad River band members revolved around technical details of sulfide oxidation, pyrite ore bodies, and water quality.
But then tribal members began to speak about why they were going to fight the mine. “When I was twenty years old, I was riding on the sloughs in a john boat,” tribal chairman Mike Wiggins Jr. said. “Riding on about four bags of rice, nice soft bags. I was dragging my hand in the Kakagon. There were all kinds of birds, and dark water in the slough. I’m dragging my hand in there, I’m looking at how it colors my hand. I was just so in love with that river. I set nets for walleye, harvested cranberries in the fall and wild rice. I was thinking, ‘I wonder if it will always be there, for my children?’ I was thinking, ‘If something ever came for this place, man, I’d fight for this place, I’d die for this place.’”
That was the moment that I realized I wanted to do what I could to help protect Lake Superior—and that meant living within the watershed full time. I decided to leave UW-Madison and I decided to focus the book on Lake Superior, particularly on contamination from mining and paper production. When Michigan Tech opened the Great Lakes Research Center and searched for several interdisciplinary water scholars, I was thrilled to have the chance to move north.
How has the sheer size of Lake Superior shaped the way in which both industry and government have addressed its use and management?
Lake Superior’s particular geographic context—it is huge, northern, extremely cold, and distant from industrial developments—means that it is still the least spoiled of all the Great Lakes. Yet the very characteristics that have made Lake Superior less contaminated from conventional pollutants such as sewage and industrial waste actually make it more vulnerable to the persistent toxic contaminants that have mobilized across the globe since World War Two.
Fewer local sources of contaminants no longer mean better water quality when pollutants are increasingly mobile. Because Lake Superior is so huge and has only one outlet, it has a retention time of nearly two centuries. This means that a drop of water, on average, stays in the lake for 191 years—and contaminants can as well. Lake Superior is extremely cold, with an average annual temperature of 39°F. The cold water and the abundant winter ice cover lead to relatively low evaporation. So when toxics carried by atmospheric currents from Africa, Asia, and the lower Great Lakes find their way into Lake Superior, they tend to stick around. Lake Superior, like other cold northern lakes, has become a sink for the world’s most distant and toxic contaminants. Toxics long banned in North American arrive windblown from distant places. Toxics from the past lie buried in sediments, stirred up into the water column by storms and bottom-feeding creatures. Pollutants in the lake blur the boundaries of space and time.
Early planners hoped that the sheer size of the lake would mean that pollution would be diluted to the point of safety. They essentially thought of Lake Superior as a big bathtub, not realizing that it’s a complicated set of interconnecting ecosystems, and pollution can be concentrated in near-shore habitats, where fish and people are easily contaminated.
The Lake Superior zero discharge demonstration program, which was intended to end the direct dumping of some priority toxic substances into the lake, was heralded as a model when it was launched in 1991. How would you characterize its success or failure?
Its successes were largely aspirational. We were going to show the world that the largest lake could be cleaned of legacy contaminants and protected from new sources of contamination. The IJC challenged the governments of the United States and Canada to “make the Lake Superior Basin a zero discharge demonstration zone for all point sources of persistent toxic substances.” The governments agreed, committing to achieve “zero discharge and zero emission” of all persistent toxics in the Lake Superior Basin and creating the Binational Program, administered by federal, provincial, state and tribal agencies. As part of that process, the Lake Superior Binational Forum was created, a volunteer stakeholder group comprised of members with diverse backgrounds that represent a wide range of perspectives such as local government, industry and business, labor, academic, faith communities, recreation, environmental, and indigenous communities. The Forum’s purpose was to ensure the success of the Zero Discharge Demonstration Zone by fostering increased participation, acting as a watchdog group, and screening proposed actions to make certain they were in accordance with the LaMP and Zero Discharge Demonstration Program principles. These were hopeful, heady days for environmentalists and Forum members (I served on the Binational Forum for 6 years, from 2010 to 2016, when the EPA eliminated our funding).
But the zero discharge program hasn’t worked. Every IJC Biennial Report released between 1993 and 2003, and every response by Parties, shows the same discouraging pattern. First, the IJC criticizes the Parties for failing to eliminate toxic discharges—or even set timetables for their elimination. Next, the Parties give excuses for failing to do so. For example, in 1994 the IJC pointed out that “the governments have not taken a single concrete action to implement their zero discharge promise.” When the 1994 IJC Report called on the United States to “establish a coordinated, planned phase-out of existing sources” of dioxin, the U.S. insisted that they would not require the paper and pulp industry to eliminate dioxin, or even install “the best technology in process and treatment.” Instead, the EPA would challenge industry to “voluntarily reduce generation of toxic substances.” The U.S. added that setting a specific date for toxic elimination “may, in fact, detract” from voluntary agreements by industry.” Canada refused as well to adopt a specific timetable, using the same logic as the United States: a timeline might interfere with “consensus amongst the stakeholders around the Lake Superior basin.”
In most IJC biennial reports on the progress of zero discharge and the Great Lakes Water Quality Agreement, the IJC urges both parties to prohibit new sources of bioaccumulative, persistent toxics—and each country has simply refused to do so. For example, after news of the Grassy Narrows tragedy with mercury poisoning of First Nations, the IJC urged an immediate stop to mercury discharges from chlor-alkali plants such as the ones at Grassy Narrows. Canada responded by stating that it would “discourage” mercury use through voluntary programs– but refused to eliminate the release of mercury into Lake Superior. Canada’s last chlor-alkali plant didn’t close until 2008, 15 years after this assurance that voluntary programs were leading to their closure.
The pattern continued with mercury from smelter emissions, such as the sintering plant at Wawa on the northern shore of Lake Superior, a plant that caused extensive forest dieback and mercury releases. In 1991, the IJC called for an immediate end to mercury releases from mining and smelting. Canada responded by stating that it would suggest to a committee that it might consider looking into recommendations for reduction of mercury emissions from smelters.
A few years later, the United States decided the best way to eliminate its problematic mercury releases into mercury in Lake Superior would be by re-defining dangerous levels of mercury—not by reducing mercury. The United States proposed to increase the “safe” daily intake level of mercury by a factor of five, allowing it to declare dramatic reductions in dangerous mercury levels. At the same time, however, the United Nations was consulting on research that led to a call for a four-fold decrease, not a five-fold increase, in the safe daily dose.
When the two Parties refused to implement immediate bans on toxic discharges, the IJC urged them to start by setting timetables for zero discharge. Environment Canada responded with a firm no: “The federal government does not support the recommendation ….Full account must also be taken of such factors as socio-economic impact.” Canada continued, insisting, “It is premature to set a date for zero discharge. It should be remembered that the Lake Superior initiative is a pilot program…It is a complex initiative requiring the continued commitment of many stakeholders. Achieving the program goal will not be a simple task.”[i] Stakeholders and ecosystem complexities, in other words, had become an excuse—not just to refuse upholding their commitments to zero discharge, but to refuse even the basic task of setting timetables for upholding their commitments.
The utter failures of Zero Discharge point out the fundamental flaw in voluntary reduction programs: they don’t work unless governments have a very big stick, not just a tasty carrot. Essentially, Zero Discharge has failed for the same reason the Great Lakes Water Quality Agreements have failed: politicians don’t want to rock the industrial boat, and they won’t until grassroots activists and scientists force them to do so.
Please tell us how indigenous peoples figure in your narrative.
The Anishinaabeg are core to every aspect of Lake Superior’s past, present, and future. Talking with Anishinaabeg people from around the basin helped me understand that framing Lake Superior as “remote” is a Eurocentric perspective. Lake Superior may have been remote from urban centers, but it was—and remains—at the very center of the Anisnihaabeg’s home.
Transforming Canada’s boreal forests into pulp devastated Canadian First Nations. The 19th century mining booms around Lake Superior displaced and marginalized Indigenous peoples, and Indigenous peoples lead the 21st century fights against renewed mining.
Pollution impacts everyone, human and nonhuman—but it’s particularly an issue for Indigenous peoples around the basin, who cannot eat the fish that are central to their cultural, spiritual, and physical health.
Who are some of the heroes in the effort to sustain Lake Superior?
Mike Wiggins, Jr., Chairman of the Bad River Band, for his passionate devotion to Lake Superior and to tribal treaty rights.
When I explored the history of earlier battles over water contamination, I found a similar passion for the lake. I learned about fierce women such as Verna Mize and Arlene Lehto who channeled their love for Lake Superior into political action, creating grassroots movements in the 1960s and 1970s to stop the dumping of tailings contaminated with asbestiform fibers into the lake. Few observers initially thought Mize or Lehto had a chance, daring to take on one of the largest mining corporations in the world. But they eventually leveraged scientific information with political savvy, and their grassroots efforts persuaded the brand-new Environmental Protection Agency to sue Reserve Mining Company. Eventually, after years of legal battles, the company agreed to change its dumping practices, cleaning up lake contamination without destroying the region’s economy. Charles Stoddard was another hero in the battle, who put his own career with the Department of Interior on the line to speak truth to power. The aquatic biologist Louis Williams did the same, refusing to be silent about Reserve’s contamination of public waters. When the federal government refused to let him publish his scientific findings, he quit his job so he could publish. This took real courage, and all their efforts led to a much cleaner lake.
Are environmental groups addressing the right issues in the right way when it comes to assisting Lake Superior?
Environmental groups right now are so overwhelmed with the federal and state assaults on basic, commonsense environmental protections, that it’s hard just to keep from drowning. These are tough times for anyone who understands the slightest bit of science. These are tough times for anyone who has spent their lifetime in the pursuit of clean air, clean water, healthy forests, healthy communities.
But we have to fight back in whatever ways we can manage. I have no idea if different environmental groups are addressing the right issues in the right way, since at this point we’re being attacked on all fronts. All we can do is keep fighting, in whatever ways we can manage, to stem the tide of destruction.
My goal in writing Sustaining Lake Superior was to write a hopeful book—a narrative of environmental recovery, not just collapse and despair. But holding onto hope can seem perverse when you read recent environmental news. Accelerating climate change has been met with withdrawal from the Paris Agreement. Environmental and labor regulations that took forty years to craft are being eviscerated. A tenth of newborn children in the Lake Superior basin are born with toxic levels of mercury in their blood, but EPA Administrator Scott Pruitt has suspended the mercury control regulations that would protect them. Even though The Lancet recently reported that 9 million people a year die prematurely from pollution, the EPA has removed scientists from the its Science Advisory Board and instead appointed a person who claims that “the air is currently too clean,” because “children’s lungs need to breathe irritants.”
Pruitt and President Trump share a key quality: not just an aversion to environmental protection, but a willingness to deny that the environment even needs protection. Trump declared to Chris Wallace of Fox News, “Environmental protection, what they do is a disgrace; every week they come out with new regulations.” When Wallace asked “Who’s going to protect the environment?,” Trump scoffed, “We’ll be fine with the environment. We can leave a little bit, but you can’t destroy businesses.”
So what we do we do? Hope is hard to find, but hope is critical if we are to keep up the resistance. Communities around the basin continue to advocate for a powerful vision of sustainability, one where health is not just about individuals, but about the interconnected relationships between watersheds and communities. If folks in the trenches refuse to give up hope, the least we can do is join them in their efforts.
Do you think we have learned the lessons of Lake Superior’s history or are we condemned to repeat them?
Nancy Langston
We are repeating all the earlier mistakes, this time without the excuse of ignorance. The federal government has set out to destroy all we hold sacred, and Michigan and Wisconsin seem determined to assist them at every step.
One lesson from history: industry has never protected the environment out of the goodness of its heart. Industry protects the environment when governments force them to do so, and governments act when citizens force them to act. So the best lesson we can learn, over and over again, from Lake Superior’s past, is to resist. As Margaret Atwood reminds us in The Handmaid’s Tale: “Nolite te bastardes carborundorum.” Don’t let the bastards grind you down.
[i]. “The Parties, in cooperation with Lake Superior states and provinces, establish a specific date at which no point source release of any persistent toxic substances will be permitted into Lake Superior or its tributaries.” International Joint Commission, Fifth Biennial Report on Great Lakes Water Quality (1991). Environment Canada, Canada’s Response to the Sixth Biennial Report 6, 8.
In 1949, renowned conservationist and fellow Midwesterner Aldo Leopold wrote about a land ethic in a seminal piece published in his classic, A Sand County Almanac. He wrote: “We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.”
These powerful words stir deep meaning as we contemplate the future of water in this century and tackle the growing global water crisis. According to MIT researchers, some 52 percent of the world’s projected 9.7 billion people will live in water-stressed regions by 2050. These statistics are hard to fathom and may seem a long time away. However, one thing is clear. The climate is changing as we witness unprecedented severe weather events within our own borders from successive powerful hurricanes to bomb cyclones to long-term droughts to massive flooding. And our century-plus-old water infrastructure systems are taking a beating.
This brings me to my main point. When it comes to the future of water, there is one thing on which we all can agree: all humans need access to clean, safe, affordable drinking water.
So how do we get there? How do we embrace a new water ethic that values water above all else? These are the vitally important questions that we as citizens of the Great Lakes must ask ourselves because we are stewards of 20 percent of the planet’s fresh surface water.
As a first step, let’s take stock of the numerous wake-up calls here in the Great Lakes over the last three years. Top of mind is Flint’s horrific lead crisis, Detroit’s ongoing water shutoffs, Toledo’s toxic algae water emergency, and growing cases of legacy groundwater contamination sites across the region (e.g., Wolverine). What all of these avoidable tragedies have in common is our collective failure to safeguard our drinking water sources. We can no longer afford to have a relationship with water where we treat it as a commodity or industrial dumping ground. Time has run out.
Logically, a water-rich region like the Great Lakes would have a deeply ingrained water ethic. On the other hand, maybe it’s the very fact that we have so much that causes us to take water for granted. Nevertheless, the moment has come for us to embrace a new water ethic; one that places water at the center of all decisions about food, energy, land-use, transportation, and community.
Liz Kirkwood, Executive Director
As Leopold explains, “All ethics so far evolved rest upon a single premise: that the individual is a member of a community of interdependent parts. The land ethic simply enlarges the boundaries of the community to include soils, waters, plants and animals, or collectively the land.”
This must be our resolve going forward if we are serious about protecting these majestic waters.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year 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 – like the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.
In the coming year, we will explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today, we begin with a roundup of critical public trust issues in Michigan in 2018.
Let’s look on the bright side, rather than dwelling on past failures. In the coming year, state officials and legislators have several opportunities to full their responsibilities as trustees of public trust resources:
Line 5: The twin pipelines crossing the Straits of Mackinac underwater are there only because, in 1954, the state granted the company now called Enbridge the privilege. State government never relinquished its ownership, on behalf of the public, of these waters and submerged lands.
In 2017, a stream of disclosures about negligence, poor pipeline stewardship, and concealment of critical information by Enbridge dramatized the risk to the public interest posed by Line 5. The Attorney General and Governor have the opportunity to eliminate this risk by revoking the Enbridge easement and phasing out or shutting down Line 5.
Nestle: The multinational corporate giant in 2016 asked the state DEQ for an increase in its already excessive pumping of groundwater for bottling and sale. This despite evidence that Nestle’s existing withdrawal is lowering the water levels of streams fed by this groundwater, and harming fish and fishing. The DEQ has an opportunity to protect the public trust by denying Nestle’s permit request.
Aquaculture: Proponents are seeking a state law authorizing the installation of factory fish farms in Great Lakes waters. These operations, which generate large amount of fish feces and could undermine the genetics of public fisheries, do not belong in public waters. Further, the private occupancy of public waters by fish farms and other structures is wholly inconsistent with the public trust doctrine. The Legislature has the opportunity to protect the public trust by rejecting the legislation.
These are only some of the public trust concerns at stake in Michigan and the Great Lakes this year. FLOW will work to restore awareness of and respect for the public trust doctrine among Michigan officials, and help the public bring pressure on them to fulfill their responsibilities.
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:
The Great Lakes are owned by the people;
The people’s ownership interest is held in a legal trust for the benefit of the people;
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.
As we approach the new year, many of us take inventory. We take a look at the goals we have set for ourselves, set new ones – or the same ones again – and we head into 2018 with a fresh perspective. I will have a physique like Arnold Schwarzenegger by this time next year. I will find the cure for cancer and world poverty by March, and donate the proceeds to FLOW. And so on.
I can see some of you shaking your head, doubting my abilities. But the main reason I could not accomplish these goals is that I do not have the resources to do so. While having an Olympic gym and personal trainer would be nice, I do not have the means to train that way with my current lifestyle. I also do not have the time or the means to unlock the secret link between cancer and poverty, or to change them.
Instead, some of my main goals will be focused on the Great Lakes, and the water in the Great Lakes Basin. One is to shut down the Line 5 pipeline in the Straits of Mackinac, removing the oil and associated risk of harm from the water. Another is to educate others about bottled water and reverse the trend of valuing convenience over the health of the Great Lakes and the human right to water. To create a world without disposable bottles full of water and without water full of disposable bottles.
These goals are not less daunting than my original goals. These are still enormous goals. The enormous difference is that I have the resources to help me accomplish these goals. Most of those resources are the people I interact with regularly at FLOW, as well as our supporters and partner organizations.
Nayt Boyt
I have been at FLOW just over a year, and even now, these people impress me so much with their abilities and dedication to the Great Lakes. Each individual is like one of the lakes, expansive and awe-inspiring, and I feel genuine gratitude to be able to work with them. It is the same gratitude I have for our Great Lakes.
As we head into the new year, I look forward to the resources I have around me – the globally unique resources in our backyard, and the ones who help protect them.
A Circuit Court ruling reversing Osceola Township’s denial of a zoning permit for a booster station five days before Christmas does not clear the way for Nestlé’s push for a massive increase in pumping from 150 gpm to 400 gpm (210 million gallons a year) from two headwater creeks. Nestlé must still obtain a permit from the Michigan Department of Environmental Quality under two laws that prevent Nestlé from degrading water levels, fish, wildlife, habitat, and wetlands.
In June 2017, the DEQ refused to issue a permit because Nestlé failed to submit sufficient proof that its more-than-doubled removal of water would not harm the waters and the state’s paramount public interest in its natural resources. In November, 2017, a Nestlé consulting firm submitted additional information based on an addendum to its computer model. FLOW, a Great Lakes Policy Center, and other organizations, including Michigan Citizens for Water Conservation and Great Lakes Environmental Law Center, have submitted comments contesting the adequacy of Nestle’s model and supporting information. Their comments have demonstrated the model is not reliable to determine effects to headwater creeks, streams, and wetlands, and that some of the data has demonstrated adverse effects at even 150 gallons per minute.
In a related matter, Circuit Judge Susan Sniegowski released a decision on December 20, 2017 that reversed an Osecola Township zoning denial of a booster station located along a water pipeline more than a mile from the wellhead. The booster pump would increase pressure in the line to handle the large expansion. The Court ruled that Nestlé’s booster station could be located in the township’s agricultural zoning district because it qualified as an “essential public service.”
“The Court ruling is a narrow one,” said Jim Olson, noted water and land use lawyer and advisor to FLOW. “The Court ruled only that Nestlé did not have to show ‘public convenience and necessity’ in order to qualify for the ‘essential public service’ exception for its booster station in the farming district. It does not affect the continued lack of proofs needed for the state permit.”
Jim Olson
Nestlé must still overcome the demands from the State, FLOW, MCWC, the Tribes, and thousands of public comments to show that the massive increase will not adversely affect and harm water and natural resources.
Nestlé lost a 9-year battle in Mecosta County when the circuit and appellate courts found that the removal of 400 gpm from a similar headwater stream system was unlawful. “Based on the experience in Mecosta, it is unreasonable for Nestlé to expect, let alone for the State to approve, an increase above 150 gpm, if at all,” Olson said. “So the booster station is largely superfluous.”
In a season of gift-giving, it’s timely to remember that the people of the Great Lakes Basin inherited the greatest freshwater gift in the world.
We are slightly more than half a percent of the population of the world, but live among 20% of the surface freshwater of the world. That’s a great asset – and an outsize responsibility.
There is nothing like them, as authors and poets attest:
In The Living Great Lakes: Searching for the Heart of the Inland Seas, author Jerry Dennis wrote, “To appreciate the magnitude of the Great Lakes you must get close to them. Launch a boat on their waters or hike their beaches or climb the dunes, bluffs, and rocky promontories that surround them and you will see, as people have seen since the age of glaciers, that these lakes are pretty damned big. It’s no wonder they’re sometimes upgraded to ‘Inland Seas’ and ‘Sweetwater Seas.’ Calling them lakes is like calling the Rockies hills.”
In Moby Dick, author Herman Melville wrote, “For in their interflowing aggregate, those grand freshwater seas of ours–Erie, and Ontario, and Huron, and Superior, and Michigan–possess an ocean-like expansiveness, with many of the ocean’s noblest traits.”
Poet Alison Swan said, “To know Superior, Michigan, Huron, Erie, and Ontario, one must visit them in all kinds of weather, at all times of year, and at all times of day, and even then they turn up surprises.”
Writing about what it means to be a Middle Westerner, author Kurt Vonnegut observed, “But the more I pondered the people of Chicago, the more aware I became of an enormous presence there. It was almost like music, music unheard in New York or Boston or San Francisco or New Orleans. It was Lake Michigan, an ocean of pure water, the most precious substance in all this world…Get this: When we were born, there had to have been incredible quantities of fresh water all around us, in lakes and streams and rivers and raindrops and snowdrift, and no undrinkable salt water anywhere!”
Dave Dempsey, Senior Advisor
But the Great Lakes are not limitless. Frank Ettawageshik, Executive Director of the United Tribes of Michigan, once said, “One hundred and fifty years ago we had a resource in the Great Lakes region that was considered inexhaustible. It lasted barely two generations. This was the White Pine forest. The White Pine of this century is Water.”
In a time of runaway population growth, accelerating climate change and growing global demand for fresh water, we cannot take our endowment for granted. We have indeed received a precious gift. It is our job to care for it.
My children and I recently celebrated the season by watching a wonderful Nutcracker ballet production at the Interlochen Arts Academy. Reading the back of the playbill, I was amazed to learn that this extraordinary music and ballet – now an American classic – was conceived one hundred and twenty-five years ago in the winter of 1892. The premiere of the Nutcracker Ballet performed in St. Petersburg, Russia, however, was not an instant success.
In fact, it was not until the late 1960s that the Nutcracker was embraced as a beloved American classic performed by countless ballet companies, primarily during the Christmas season. The melodies of Tchaikovsky resonated so deeply in me, drawing me into Clara’s enchanted world. And I remember thinking how few things are as powerful and evocative as music.
So what does Tchaikovsky’s ballet have to do with public trust law in America? Good question. It may seem like an odd connection but it’s not, because 125 years ago marks the seminal Supreme Court decision – Illinois Central Railroad v. Illinois – that established U.S. states as trustees over public trust waters and bottomlands for the benefit of citizens in perpetuity. One hundred and twenty-five years ago, the public trust doctrine became the law of the land. After nearly thirty years of controversy, the Supreme Court affirmatively nullified the deed the Illinois legislature had granted the Illinois Central Railroad. As a result, the public gained back a quarter-square mile of the downtown waterfront of Chicago and understood that they could hold their state governments accountable for protecting the paramount interests of the public waters.
The importance of this legal decision cannot be underscored. If the Supreme Court had not ruled in favor of the public and asserted the inalienable nature of public trust waters and bottomlands, Chicago’s downtown waterfront would have been privately owned, and there would be no Millennium Park.
Liz Kirkwood, Executive Director
One hundred and twenty-five years is a long time. And yet, I reflect on how timeless and powerful Tchaikovsky’s music and ballet remains. What if the public’s understanding of public trust law had been similarly embraced? What if states like Michigan upheld their public trust duties and enforced easements in public trust waters to prevent a private oil company from threatening our public waters? What if more citizens knew that their state leaders – governors, attorney generals, and agencies – were required by law to protect the paramount interests of navigable waters and tributaries? And what if more citizens demanded public trust protections of our greatest natural resource – water? Just imagine how powerful a stewardship tool we would have today. Let’s remember the gift the Supreme Court gave us 125 years ago and bring it back to life for the sake of the Lakes and our children’s future.
Mike Vickery serves as vice-chair of FLOW’s board and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building. He is an Emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.
