Tag: jim olson

The Public Trust Doctrine Percolates into State Courts, Legislators, and Commissions to Protect Groundwater, Streams, Lakes, Economies and Quality of Life


“Water Justice Flows Like Water.”[1]

 

Law professor Sprout D. Kapua’ala, borrowing from Martin Luther King, Jr.’s I’ve Been to the Mountaintop speech in 1968 (“justice rolling down like waters”), captures decades of conflict over the streams and waters of Hawai’i, siphoned and dried from a century of withdrawals and diversion ditches cut across the landscape for corporate massive production of sugar and fruit exports. This unbridled exploitation of Hawai’i water has distressed stream and wetland ecosystems and overwhelmed native and public water uses, including the native rights to small-scale Kalo cultivation, gathering, and citizen rights to fishing, swimming, drinking water, and recreation protected by the public trust doctrine. 

For the past two decades, the Hawai’i Supreme Court has faced head on the collision between the near total loss of the Makapipi and East Maui rivers because of numerous ditches across the land to transport water for corporate sugar. In 2000, the Court ruled that state water board decisions that allowed water diversions for large corporate farming were subject to the public trust doctrine under the Hawai’i constitution and common law.[2] The court ruled that under the public trust doctrine, basic stream flows had to be maintained to protect public trust uses, such as small-scale native farming, fishing, and drinking water. Scientists and citizens recognized that small-scale cultivation of Kalo requires steady flows of groundwater and streams, and in turn the native production and uses of water sustain culture and communities. Since the Court’s Waihole I decision in 2000, the public trust doctrine has been applied to the state water board and even the land use and zoning boards of municipalities to protect drinking water and other public trust uses from land and water intensive development. [3]

As a result, the legislature passed laws requiring designation of groundwater aquifers or streams for special protection of flows and levels to support public trust protected uses. Native, environmental, and community organizations joined together to petition a state water board to declare groundwater and streams subject to special public trust protection through maintaining stream flows or groundwater migration and levels. Large corporate farming and other interests contested these designations. The Court continued to respond by recognizing and upholding at least minimum flows and levels of freshwater sources, balancing public uses against large volume water diversion and use for farming and development.[4]

Our mission at FLOW, as most of you may know, is to seek adoption of the public trust doctrine principles in every state and beyond. The primary principles under the public trust doctrine are: promotion of a public purpose, such as a public drinking water supply, fish restoration, or public beach access, and non-impairment of water, ecosystems, and public trust uses, such as those mentioned above. A universal understanding and application of public trust principles offers a way out of the world water crisis, which is worsening every day as a result of global warming, pollution, waste and abuse of water resources, increased population and demand for food and clean, safe water. Irrigation and water diversions for agriculture account for 70 percent of human use of fresh groundwater, lakes, and streams, industrial and steam-generated electricity another 20 percent, and municipal and residential use the remaining 10 percent. Massive diversions of water across continents have become too expensive and disruptive to sustain any longer.

Future survival, economies, and quality of life will require sustainable practices with a primary goal of assuring the integrity of flows and levels within each watershed and region of a country. Public trust principles impose limits on exploitation of flows and levels, or private subordination of protected public trust uses. If we understand that water is a commons owned or held by each state as sovereign for the benefit of people and the overarching public interest, and apply these principles, we will make very good decisions about human survival, environment, economy, jobs, and quality of life.

 

Recent Developments

In the last two weeks, the realization and importance of the public trust doctrine has come home to ordinary citizens in Hawaii. The relationship of public trust to groundwater and public water uses has been percolating in the legislatures and courts of Vermont, Arizona, Wisconsin, Minnesota, Rhode Island, as well as South Africa, Pakistan, and India. Massive groundwater withdrawals or land use practices and water diversions like the Colorado River, Chicago diversion from Lake Michigan, the loss of the Aral Sea in Russia, or Yangtze in China, that impair public trust waters and drinking water, fishing, swimming, or other important uses are subject to public trust principles that prevent privatization and impairment.  The public trust does not prohibit industrial or agricultural withdrawals, or the privatization, diversion and sale of water, but it subjects these uses to an overarching backstop framework[5] that assures and sustains the flows, levels, and underlying uses of water, both human, environmental, and businesses, within watersheds and communities.

On June 20, 2018, in a historic decision, the Hawai’i Commission on Water Resources Management ruled that stream flows must be restored in the Makapipi and East Maui rivers, which will require the closing of several irrigation diversion ditches and significant limitations on others. [6]The corporate holding company, Alexander and Baldwin, of Hawaiian Commercial Sugar, argued for diversified agriculture and planning for water use for its land holdings. The Water Commission came down on the side of local, public trust uses by restoring stream flows diverted for more than a century.  Going forward, Hawaii companies, municipalities, and land developers must look at limiting water uses to sustain the basic water uses assured all people under the constitution and public trust doctrine.

What does this mean for the waters of the Great Lakes basin, the waters of Illinois, Indiana, Michigan, New York, Ohio, Wisconsin, Minnesota, Pennsylvania, and Wisconsin (and two Canadian provinces)?  We have significant protection of waters of the basin from diversion under the Great Lakes Compact diversion ban. Recent large-volume diversions of Lake Michigan to Waukesha and now approved for the Foxconn complex outside the basin show there are gaps or loopholes. The MDEQ in Michigan approved diversion of another 210 million gallons a year from the headwaters of two cold water trout streams for Nestlé’s bottled water export operations; this, too, was under a “bottled water” exception in the Compact and Michigan law.  The same MDEQ just permitted the loss of 600 million gallons of water near a wetlands, creek and lake to mine potash, even though it is widely available elsewhere. The Michigan legislature just passed a law signed by Governor Snyder to circumvent water standards and public permit proceedings that would safeguard streams, lakes, and groundwater from excessive withdrawals and water loss for large corporate farms growing corn and crops for biofuels and other industries.  To put things in a global perspective, Saudi Arabia, China, India and other water-scarce, industrial, high-population countries are buying millions of acres of land in water and soil rich countries, like Brazil and the United States, to use large volumes of water here to export food to their people at home, because they don’t have the water or want to use the water they do have for continued development and industrial growth. How will these competing, high demands for water play out in watersheds, streams, rivers, lakes, wetlands or domestic farming, drinking water, and protection of fishing, local land uses and development?

The Hawaiian experience is fertile well-watered ground for those of us in Michigan, the Great Lakes, or elsewhere, to understand the importance of water, stream flows, levels, and watersheds to our own environment, heritage, economy, and culture. The place to start is fashioning a well-crafted, clear, concise statement for protection of the public trust in our waters where we live and survive. The sooner we do this, the sooner we will be prepared to withstand the coming global, regional, and local conflicts over water. If we fail to do this, citizens, cities and towns, farming, and tourism or recreation like fishing, swimming, boating, and even golfing will be subordinated to unpredictable, thirsty, large private and international interests.

Jim Olson, President and Founder

Putting public trust principles at work now, by simple, articulate laws or constitutional provisions will provide the protection we need. We will not lock up our water, but we will assure its sustainability in our rural, urban, and regional Great Lakes watersheds and communities. Our life and livelihoods here in Michigan and the Great Lakes depend on the integrity of flow and levels of our groundwater and streams.


[1] Sproat, D Kapua’ala, Water Justice Flows Like Water: The Moon Court’s Role in Illuminating Hawai’i Water Law, 33 Univ. Hawai’i L. Rev 537.

[2] In Re Water Use Applications (Waihole I), 94 Hawai’i 97 (2000).

[3]  Waihole II, 105 Haw. 1 (2004); In re Kukui (Molaka’i), 116 Haw. 481 (2007).

[4]  Id.

[5] Protection of the Great Lakes: 15-Year Review (International Joint Commission, Jan. 2016).

[6] Petition to Amend Interim Instream Flow Standards for Honopou et al., State of Hawaii, Commission on Water Resource Management, Findings of Fact, Conclusions of Law, & Decision and Order, Case No. CCH-MA13-01, June 20, 2018 (300 pps.).

FLOW’s Vision to Address the World Water Crisis

“The water cycle and the life cycle are one” —- Jacques Cousteau

 

A White-Water Trip Down the Currents of the Public Trust Doctrine

In ancient times, people knew water and the life cycles were the same. Without water, civilizations collapsed. Rome, with its dependence on water and the spokes of its aqueducts, knew this. It is little wonder that that nearly 2000 years ago, air, running water, and wildlife were considered common to all.

In 1215, paragraphs in the Magna Carta –that Great Charter of Liberty that formed the basis of modern constitutional democracies–ordered the Crown and Lords to remove weirs that limited the public’s access to water, fishing, travel, survival.

In 1821, the New Jersey Supreme Court recognized this principle. The legal principles around land came down to this country as private property. But the court ruled that water, particularly navigable waters, came down as commons. Landowners had rights of use of water, so did the public, but no one owned the water. The water was owned by the States as sovereign (the people) for the benefit of citizens. A private landowner could not claim ownership of the oysters and the seabed, and the state as sovereign could not transfer the seabed or exclusive license to take oysters to a private person.

In 1892, the U.S. Supreme Court ruled that the legislature of Illinois had had no power to convey a square mile of Lake Michigan on the shore of Chicago to Illinois Central Railroad for a private industrial harbor and industrial beachhead. Why? Because the Great Lakes, like all navigable waters or public property or commons of a special character, was subject to a public trust: Government cannot alienate the commons of water, lakebeds, or impair the quantity, quality, or public uses—fishing, navigation, boating, swimming, bathing, drinking water or sustenance—protected by the public trust doctrine.

Photo credit: Beth Price

When Michigan joined the Union—in 1837—the state, like every other state, took title to the waters and lakebed below the ordinary high water mark in public trust for citizens. The federal government reserved only a navigational servitude to assure travel for all citizens for commerce and pleasure over the navigable waters of the U.S. The title of the state cannot be transferred and the state cannot be divested, by anyone of this sovereign title of a state and its citizens. And because it is a trust, like any trust managed by a bank or other concern, each citizen is a legal beneficiary who can enforce this trust when the trustee breaches its duties.

In the 1970s, a Wisconsin court recognized that wetlands formed by the waters of an adjacent public stream were part of the public trust and could and should be protected. An Illinois court recognized the public trust doctrine applied to public parks, also public common property of a special character.

In the 1980s, the California Supreme Court ruled that Los Angeles could not divert water to feed its water demand from a tributary upstream from Mono Lake, because the diversion of the stream diminished and impaired the public trust in the lake.

From the late 1990s to this month, the Hawaii Supreme Court has ruled a number of times that tributary groundwater, connected to a stream, could not be removed if it dried up or diminished the basic public uses of all citizens under the public trust doctrine.

In the last eight years, the states of Vermont, Wisconsin, Minnesota, and California have recognized the connection between groundwater, springs, creeks, streams, wetlands, and lakes—the hydrologic or water cycle.

Last fall, and in two subsequent rulings, the federal district court and 9th Circuit Court of Appeals ruled that children and persons whose health, property, and public trust uses of navigable public trust waters  were impaired or threatened with impairment in the future by climate change had a right under the public trust doctrine and constitution to bring a lawsuit against the federal government — to compel it to take actions within its governmental powers to reduce C02 and greenhouse gases to mitigate the coming impacts from climate change. The federal government and states have a duty to protect the public trust waters and commons, and the public uses that depend on it. It cannot stand by with deliberate indifference and do nothing. It cannot deliberately obstruct or interfere with efforts that protect our water and this commons.

 

Time for a Wide Application of the Public Doctrine’s Legal and Ethical Principles

The importance of the public trust doctrine grows exponentially and rapidly.  Some examples—some representing FLOW’s work—

  • Line 5 in Straits of Mackinac and the 645 miles under or near the lakes, streams, towns, groundwater drinking water zones of Michigan. The public trust in the Straits and Great Lakes and waters, and public use and health, are threatened with deliberate government refusal to take serious action.
  • Nestlé’s major expanded water diversion from the headwaters of creeks near Evart, with little regard for existing conditions and what the withdrawal will do to creeks, wetlands, and wildlife; and with little regard for the shocking injustice that even though water is held by the State for its people, Nestle gets it for a $200 administrative fee and pays nothing for the water, massive profits with no benefit to citizens. Meanwhile, people in Detroit are cut off public water supplies because they can’t afford the $150 to $200 a month bill. People in Flint couldn’t drink their water, can’t afford to fix their pipes from their home to the main system so it’s safe, and must pay $150 to $200 a month.
  • Foxconn recently obtained approval from the State of Wisconsin of an exception to the Great Lakes Compact diversion ban to divert 5 to 7 million gallons of water from Lake Michigan to 1,000 acres for a new industrial manufacturing facility outside the basin divide, for “public” and “largely residential” purposes.
  • Wall Street, backed by a federal government effort to cut funding for states and local governments, is stepping in to control water privately, for higher gains, and higher costs.
  • Scott Pruitt, EPA Administrator, wants to nix the federal clean water rule for waters of the U.S. under the Clean Water Act.
  • Climate change continues to exacerbate droughts and floods, causing devastating harm and damages; EPA’s Pruitt is interfering with efforts under Clean Air Act to reduce greenhouse gases.
  • Until recently, Ohio and the federal EPA have dragged their feet to declare western Lake Erie impaired to reduce phosphorous and prevent “dead zones” and algal toxins from entering public water supplies.
  • President Trump last week revoked an Executive Order and 8-year effort by the Obama administration to start protecting oceans and the Great Lakes with stewardship and other principles to assure sustainability and integrity of these waters. In its place, President Trump issued an Executive Order to increase opportunities for industrialization and oil and gas production and transport under and over our oceans and the Great Lakes.

Each of these examples runs counter to the public trust doctrine and the rights or interests of citizens as beneficiaries. Each example either alienates or privatizes public trust water or impairs or threatens impairment of drinking water, fishing, swimming, boating, and sustenance. Each of these threatens health, public and private property, public uses, tourism, and quality of life and long term economic stability.

President Trump’s Executive Order ramping up industrial uses and oil and gas leasing and transport in, under, or over the Great Lakes completely ignores the legal fact that the federal government does not own the lakebeds or waters of the Great Lakes. With last week’s announcement by Justice Anthony Kennedy that he will step down from Supreme Court later this summer, solutions to these major threats and problems will face greater difficulty if not impossible odds.

Science and common sense informs us in the context of today’s world that human behavior and actions influence every arc of the water cycle—groundwater, streams, lakes, rivers, ocean, evaporation, snowpack or rainfall. One simple documented conclusion makes the point: The demand for freshwater will outstrip supply by thirty to forty percent by 2050. Population will have increased to nearly 9 billion, and 2 billion persons may be without adequate or safe sources or supplies of freshwater. 

Jim Olson, President and Founder

At FLOW, we are working to educate leaders, citizens, communities, and businesses in a way that offers a legal and policy framework that is equal to and embraces the water cycle and, as noted at the outset, the life cycle. Water is public, held in public trust, and must remain so. If we protect water as a public trust, we will make good choices about energy, land development, economy, and quality of life.


President Trump’s Executive Order to Industrialize Great Lakes Violates the Public Trust


On June 19, 2018, President Trump issued an Executive Order that declared “the ocean, coastal, and Great Lakes waters of the United States are foundational to economy, security, global competitiveness, and well-being of the United States.” The purpose of this order is three-fold:

  1. Facilitate economic growth and industrial use of the Great Lakes, including increased off shore oil and gas exploitation from beneath the oceans and Great Lakes;
  2. Form partnerships between governments, scientists, and industries to better inform decisions and enhance development opportunities for industries in or along the oceans and Great Lakes;
  3. Revoke President Obama’s Executive Order 13547 (Stewardship of the Ocean, Our Coasts, and the Great Lakes) of July 19, 2010.

In other words, deep-six our nation’s water policies aimed at the continuing struggle to correct the ills of industrialization, oil and gas development, invasive species, waste discharges and abuses of our oceans and Great Lakes. Like a Chekhov short story after the Russian Revolution, our Nation’s ocean and Great Lakes policy has been stripped of any reference to the importance of “climate change,” “environment,” “sustainability,” “ecosystems”, “adaptability,” “resiliency,” and “stewardship” to our waters.

The Timeline

Reports, books, articles abound about the demise of the Great Lakes from industrial and wastewater abuse in the late 1800s until 1969– made infamous when the Cuyahoga River in Cleveland caught fire, one of many such incidents causing millions of dollars in damages. Soon after, Lake Erie was declared dead from phosphorous loading. Congress responded by passing the Clean Water Act to implement a national policy, carried out by the States, to prevent degradation of our nation’s water quality. States like Michigan banned detergents and cleaning compounds containing high levels of phosphorous. The International Joint Commission (“IJC”), the binational governing board over pollution and diminishment of the waters of the Great Lakes spearheaded a landmark Water Quality Agreement between Canada and the U.S. and the eight states bordering these inland seas. Along with the Santa Barbara oil spill, these events helped usher in the environmental era, one that has become as much a part of life as water, food, livelihood, and the economy.

In 1978, stories of toxic chemicals in waters and soil in Niagara, New York hit the national news, and soon the tragedy of “Love Canal” fostered a massive effort by the nation and states to make “polluters pay.” How could a canal turned into a waste dump of toxic soup– the list of hazardous substances a mile long, at the time unknown, today on all of the toxic regulatory lists– then be used by a school, and later sold for a 36-block subdivision? In response, Congress and the states passed laws like the Federal Superfund or state superfund laws to make the “polluter pay,” and force the cleanup of the toxic legacy left by industry over the past 150 years.

In the 1980s and 1990s, the IJC, Environment Canada, US EPA, states, and untold numbers of scientists, policy-makers, citizens and nonprofit organizations pushed for identification and cleanup of toxic “hot spots” in the harbors and along coastlines of the Great Lakes, and adopted an ecosystem lake-wide approach to protecting and restoring the Great Lakes and their connecting or tributary waters. In recent years, efforts by members of Congress who are part of the Great Lakes delegation, leading conservation and environmental organizations like National Wildlife Federation, Sierra Club, and so many others, pressed Congressional appropriations in the hundreds of millions to finally restore our Great Lakes and remove those toxic “hot spots” that continue to plague public health, fishing, recreation, tourism, jobs, economy and quality of life. 

In the past decade, the U.S. and Canada have amended the Great Lakes Water Quality Agreement to address not only toxic hot spots, but stop acidification, waves of invasive species like Asian Carp and quagga mussels, nutrient runoff and algal blooms that have turned the western one-third of Lake Erie into a “dead zone,” stem the tide of aquiculture, and prepare for the potential devastating impacts from extreme weather caused by climate change. The States and Congress also enacted the Great Lakes Compact that prevents diversions of water from the Great Lakes, with a few exceptions for bottled water and communities whose territory and water systems cross the basin divide. Most recently, the IJC, courts, and states have begun to implement the ancient legal principle that protects the Great Lakes, known as the “public trust doctrine.”

In 2010, President Obama picked up the momentum to protect our oceans and Great Lakes after the Deep Horizon oil spill in the Gulf of Mexico, the effects of which decimated 1,300 miles of coastal ecosystems, towns, quality of life and water-dependent economies. Executive Order 13547 declared, “America’s stewardship of the ocean, our coasts, and the Great Lakes is intrinsically linked to environmental sustainability, human health and well-being, national prosperity, adaptation to climate and other changes, social justice, and security.” He recommended implementation – in cooperation with states, tribes, foreign governments, and citizens– of this goal for all agencies of the federal government whose decisions affected the oceans and Great Lakes. 

On June 19, 2018, in one short stroke of the pen, President Trump nullified decades of dedicated conservation efforts by the federal government, states, tribes, scientists, nonprofit organizations, and citizens to come to grips with the reality of what we and the world face in the 21st century. President Trump has returned the country’s national water policy back to the ecological barbarism of the late 1800s and the last century.  He has ordered federal agencies to abstain from stewardship and protection of the integrity and sustainability of our waters and start cooperating with the private sector to exploit them for industrial uses, oil and gas and energy development, and marine transport of oil and similar hazardous substances. Is it now open season for industry to plunder once more the Great Lakes? In the mind of President Trump and his private industry friends it is.  They will stop at nothing to push the Dow Jones to all-time highs, even if it costs us the Great Lakes, public health, and quality of life and our economy itself. Trump has called for increased offshore oil and gas leasing and development and energy maritime transport.

President Trump Ignores and Betrays the Public Trust in the Great Lakes

The real question now is whether President Trump’s Executive Order has any effect on the Great Lakes.  President Trump’s Executive Order spells doom for the oceans, but not the Great Lakes. While the order may force federal agencies to retract their powers when it comes to permitting industry and energy transport near or on the Great Lakes, the President and federal government have no say in the leasing, sale, and use of the waters and lakebeds of the Great Lakes and tributary lakes and streams.

Under the Federal Submerged Lands Act, the near-shore or coastal zone below the ordinary high-water mark is held by ocean coastal states in public trust. Beyond the near shore, the federal government controls the sovereignty of the water and bottomlands of the oceans, and can, subject to express authority and law, sell oil and gas or other mineral leases to develop the oceans.  Fortunately, that is not the law of the Great Lakes. President Trump’s Executive Order appears to be ignorant, at least oblivious, of the legal fact that all of the states of this country became vested with absolute title in the navigable waters and land below the ordinary high-water mark under the “equal footing” doctrine. All of the states bordering the Great Lakes took title to these waters and lakebeds when they joined the Union as sovereign for the benefit of citizens. All the federal government has is a reserved right of navigation for all citizens to travel and engage in commerce over the waters of the U.S.  The title and any decision concerning leasing, sale, or other use for oil and gas development, energy transport like Line 5 in the Straits of Mackinac, remains with the State, not the federal government, and not President Trump.

But there is even more to it than state sovereign ownership.  This state ownership and control of the Great Lakes is subject to the public trust doctrine. In 1892, the U.S. Supreme Court in a case called Illinois Central Railroad v Illinois ruled that the Great Lakes are held by the states in public trust to protect paramount public trust uses of citizens: navigation, fishing, swimming, bathing, boating, recreation, and drinking water or sustenance. States have an affirmative duty to protect the public trust and cannot alienate or lease it for private development or risk impairment of these public trust waters and uses. Virtually every state on the Great Lakes and beyond has adopted state sovereign ownership and public trust in water.  After talking with my colleague and friend Dave Dempsey about the topic of this article, Dave, reminding me once more of the importance of history, sent me a news clipping from 2002, reporting the passage by the Michigan legislature of a ban on oil and gas development of the Great Lakes under the public trust doctrine. Governor Engler, in prescient Trump-like fashion, opposed the bill and refused to sign it. The legislature overruled him.

But the legal truth is, the public trust doctrine imposes a limitation on exploiting or risking the Great Lakes by leasing for oil and gas or other private development, except within a very narrow exception: A project must improve or enhance a public trust interest, such as a marina that fosters riparian and public fishing and boating and cannot otherwise risk impairment of the public trust.

Jim Olson, FLOW Founder

Sorry, President Trump, you may have the authority to revoke President Obama’s stewardship toward the oceans and Great Lakes and reindustrialize the waters of the nation. But you cannot revoke state ownership of water, bottomlands, or the public trust doctrine. Governor Engler didn’t have the authority to do so. You don’t either. We who live in the Great Lakes Basin hereby serve notice that the Great Lakes are off limits. The Great Lakes belong to the states in trust for its citizens– the legal beneficiaries.


Saving the Straits of Mackinac

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.


FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

FOR IMMEDIATE RELEASE TO MEDIA: May 4, 2018

 

Dave Dempsey, Senior Advisor                                                               Phone: 231-944-1568
FLOW (For Love of Water)                                                       Email: dave@flowforwater.org

Jim Olson, Founder & President                                                            Phone: 231-499-8831
FLOW (For Love of Water)                                                             Email: olson@envlaw.com

 

FLOW Challenges Wisconsin’s Approval of Lake Michigan Water Diversion

 

A Lake Michigan water diversion approved by the State of Wisconsin is inconsistent with the Great Lakes Compact and threatens an open season on Great Lakes water, FLOW said today.

The Traverse City, Michigan-based science and law center asked Great Lakes governors and a Regional Body established by the Compact to review Wisconsin’s approval of a 7 million gallon per day diversion request by Racine, Wisconsin, a city entirely inside the basin, primarily for the Foxconn Corporation in Mt. Pleasant, Wisconsin. Wisconsin Department of Natural Resources approval of the diversion is based on a faulty interpretation of the Compact and sets a dangerous precedent, FLOW said.

“We can’t go into this century’s water crisis with a loosely conceived decision that turns the ‘straddling community’ exception to the diversion ban on end,” said Jim Olson, founder and president of FLOW. “The Compact envisioned sending water to cities that straddle the basin with existing water infrastructure that already serves residents on both sides of the divide. Wisconsin has shoe-horned Racine’s request to extend its pipes outside the basin to serve a private customer, not a public water supply. Scores of other communities and private interests could start doing the same, and billions of gallons will ultimately end up outside the basin.”

“Wisconsin’s approval of this diversion doesn’t just bend the Compact, it threatens to break it,” said Dave Dempsey, Senior Advisor to FLOW. “The Racine-to-Foxconn diversion must receive the highest degree of scrutiny, and if it is discovered that the application of this exception violates or is not consistent with the Compact, the Council, Regional Body, and parties or citizens must correct the error before it is too late.”

The approved diversion allows the City of Racine to extend its existing water supply system to an area of Mt. Pleasant not served by a public water supply and outside the Great Lakes watershed.

FLOW’s challenge has two parts:

  • The Foxconn diversion stretches the Compact’s exception to a ban on diversions for so-called straddling communities that is intended “solely for public water supply purposes,” primarily residential customers. The exception was intended to assist communities with public water supply systems that already extend across the divide and serve a straddling public water supply, with emphasis on residential users. The Racine-to-Foxconn diversion is simply a diversion of an in-basin city’s in-basin public water system to an area outside the basin for an industrial purpose, as acknowledged publicly by state and local officials. The City of Racine circumvented the requirement by using its gross water utility system-wide data to show that its in-basin system serves 30,425 residential customers, 848 multi-family residential customers, about 3,000 business, commercial, and 302 industrial users. But the water diverted or transferred here is the 7 million gallons covered by the Racine application. If the analysis is limited to that required by law, the primary purpose of the diversion is to serve customers outside the basin who are commercial and industrial—the Foxconn plant project, and not residential users.
  • The Foxconn diversion violates the exception for “straddling communities” because the exception is solely for public water supply “within” or “in” “the straddling community.” A customer area in an incorporated town like Mt. Pleasant is not a public water supply of Mt. Pleasant, and therefore Mt. Pleasant without its own public water supply system does not qualify as a “straddling community.” To interpret the exception otherwise, is to allow a city inside the basin to divert water to a new customer in an area outside the basin by merely assuming the identity of an existing community whose corporate limits straddle the basin divide. This is not what the exception was intended to allow; it does not serve the public water supply of Mt. Pleasant; and it serves the customer and newly diverted water on the part of Applicant City of Racine.

The Council and Regional Body have broad authority to bring actions, exercise rights as aggrieved parties, or exercise powers of review for consistency, compliance, uniformity based on a joint commitment to protect the integrity of the Great Lakes; this means upholding the diversion ban and interpreting and applying the exceptions to the ban as written. The Racine in-basin community proposed diversion for primarily industrial use by an industrial customer in Mt. Pleasant, but outside the basin, does not qualify for the straddling community exception.

The Council and Regional Body and affected or aggrieved parties should demand an investigation, review, and determination of whether or not the Racine proposal and final determination by the Wisconsin DNR fall within, meet and/or comply with the “straddling community” exception standard, FLOW said.

###

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

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.


Court Charts Path Forward for Generational Commitment to Save Humanity and Earth from Rising Devastating Effects of Climate Change

byzantine-empire-public-land.-trusts

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


Between 2010 and 2016, several groups of young people filed lawsuits in different regions of the United States, claiming the states and federal government had failed to fulfill their higher duties under their authorized powers to do something about CO2 and greenhouse gases (GHGs) that have fired warming of the planet, extreme weather events—climate change—causing devastating harm to their lives, homes, families, waters, fishing, and communities.  

Federal and state governments stonewalled their efforts, claiming that they could not be compelled to take action because the children did not have a liberty or property interest protected by the Constitution, and that they had no right or interest – standing— to bring a lawsuit.[1]  At first, the government succeeded, and then one or two courts recognized that these children’s lives and interests were threatened, and that climate change was a clear danger if not the cause of serious injuries and damage, and opened the door for litigation. But none of these efforts resulted in a clear recognition that these children, or other people threatened or harmed by climate change induced extreme weather, had a constitutional interest in “liberty” or “property,” or an interest as beneficiaries of a public trust imposed on government to protect vital interests—like drinking water, property and home, and fishing, boating, or farming.

 

A Watershed Moment

Nothing much happened, that is, until Kelsey Cascadia Rose Juliana and other children, through their legal guardian, climate scientist James Hansen, filed suit in the federal court in Portland, Oregon in early 2015.[2] The child plaintiffs charged that the federal government had violated their constitutional and public trust rights – a generational right to non-impairment of their beneficial rights in water and use of water for essential needs based on the public trust doctrine.[3] The children charged that the government and EPA had failed to take sufficient action to stem the harm and dangers of climate change, that the window for action to prevent increasing catastrophe was short, and requested an order from the court to compel the government to develop and implement a comprehensive plan to reduce CO2 and effects of climate change.

Once more, the federal government, joined by intervening industry organizations, moved the court to toss the suit because there was no legal precedent for these claims, and even if they existed, the children lacked standing or any real interest to protect, and that the students were interfering with the exercise of political discretion left to the government. In sum, the government argued the claims even if real were not the students’ business or the stuff that courts should decide.

But this time, the federal government lost. The magistrate ruled that the children had stated facts, endangerment, and harms sufficient for the early phases of the suit to proceed.[4] But government and industry, now threatened by the suit, filed motions before the federal district judge assigned to the trial of the case. In an enlightened opinion in late 2016, Judge Aikens rejected government and industry contentions, adopted the magistrate’s earlier decision, and ruled that the children plaintiffs had the right to bring the suit. He also ruled that the children had properly stated the critical dangers of climate change, the deliberate indifference on the part of the government, and properly claimed a violation of “liberty” under the constitution and the government’s high duty under the public trust doctrine to protect the children’s present and future from threats of rising oceans and impairment of the nation’s waters.[5] 

Judge Aikens considered the threat to the children was real, had already caused serious damage, and posed imminent danger to them and humanity in the near future. Exercising what he considered the traditional role of the courts, because the judiciary can’t ignore a “wholesale failure” that unchecked would result in a “collapse” of humanity. Judge Aikens ordered the parties to prepare for a trial that would determine the basis of climate science, the children’s claims, and apply the law and Constitution.

 

Hurricanes Harvey and Maria

More recently, Hurricane Maria in Puerto Rico and Hurricane Harvey, and the raging fires in California, have jolted us into the realization that global warming and extreme and increasingly chronic effects have caused and are causing devastating and chronic harms and interference with communities, property, and water. To list a few, rising sea levels wreaking havoc in coastal cities, flooding, drought and heat and fires, endangered public health, shut off of public services and water systems, landslides and other damage to property and lives.

Closer to home, in the Great Lakes region, including Michigan, we’ve seen climate change effects exacerbate and foster algal blooms that have shut down Toledo’s drinking water for 400,000 people, and more in Monroe, Michigan. We’ve seen extreme rainfall events overwhelming stormwater controls and drains, resulting in sewage overflows and serious flooding.

In the last century, some courts still held fast to the idea that the air was the atmosphere, lakes and streams were surface waters, and the water beneath our feet—groundwater—was simply “out of sight, out of mind.” In the last 30 years, hydrogeological and weather scientists have made one thing clear: We live in a water cycle, the hydrosphere, where every arc of the water cycle is connected to the others. The arc of precipitation falls to the earth; the arc of runoff flows over the land surface to drains, gullies, and into creeks, streams, rivers, and lakes. The water percolates into the earth and forms aquifers—water sources—and groundwater, another arc, which then discharges through seeps, springs to form creeks, streams, rivers, and lakes. Then, these surface waters flow to the ocean. From the arc of evaporation—from the surfaces of vegetation and water bodies, transfers water into the atmosphere. In the atmosphere, water is diverted into the arc of the air or our hydrosphere, in the form of concentrated “rivers” and “lakes” of moisture and water. 

Climate change is not just an air pollution question, it is also a water question– hydrosphere—climate change directly affects the hydrology and movement of water in every arc of the water cycle, and interferes with and impairs water, land, homes, community, and people everywhere. The effect of climate change on water and earth and life dispel any doubt that we and everything else are inextricably connected by the flow and movement of every arc of the water cycle.

Yet despite efforts to do something about climate and water and to become more resilient to live as best we can with the coming changes and impacts from climate change, the federal government continued to drag its feet.  The federal government was forced and prodded by the federal courts to treat CO2 as a “pollutant” under the Clean Air Act, but our current President has thumbed his nose at climate change rules and denounced the Paris Climate agreement. It is not unreasonable to conclude there has been a deliberate indifference on the part of governments and industries to reduce the rising dangers and imminent threat to millions of people, water and the hydrosphere.

 

Constitutional Rights and the Public Trust in Water

In 2011, For Love of Water (FLOW) and the Council of Canadians (Canadians) filed a formal report and request with the International Joint Commission (IJC) to recognize the legal interest of citizens and the duties of both countries and state governments to protect water quality, flows, levels, and its protected uses that citizens rely on for their lives, sustenance, and livelihood based on the public trust doctrine. The public trust is a well-established ancient principle that protects navigable waters and the rights of fishing, navigation, drinking water, swimming, bathing, and sustenance. Because current laws and the governments’ ability to address increasing systemic threats to the Great Lakes and all tributary waters–like algal blooms, Asian Carp, rises and drops in water levels from extreme weather, toxic chemicals, and algal blooms from nutrients and climate– FLOW and the Canadians asked the IJC to recognize the public trust doctrine, and urge governments to fulfill their duties as trustees of these waters and public trust natural resources. After supplemental reports and considerations, the IJC issued a report in 2016 that recommended the public trust as a “backstop” to fill the gaps and limitations of existing laws and efforts.

At about the same time, Michael Blumm at Northwest Law School in Portland and Mary Christina Woods at University of Oregon pioneered claims that the public trust doctrine should be applied to the atmosphere in order to force governments to drastically reduce CO2 and GHGs.[6] 

Even without extending the public trust doctrine to protect the atmosphere, FLOW argued that because the arcs of the water cycle formed a single hydrological system—hydrosphere– the traditional application of the public trust doctrine to navigable waters could be used as a basis to reduce CO2 and GHGs, because the effects on the hydrosphere had a direct effect on streams, lakes, and the oceans, and impaired if not destroyed fishing, drinking water, and other life-sustaining public trust uses.[7]  Judge Aikens followed similar reasoning in accepting the children’s public trust claim in the Juliana suit.[8]

 

Trump Administration Climate Change-Deniers Try to Torpedo the Children’s Trust Lawsuit

In a last-ditch effort to avoid a trial over the children’s climate change suit, newly appointed federal officials and their lawyers looked for a way to deep-six the Juliana lawsuit before federal district court Judge Aikens. Justice Department lawyers filed an unorthodox request with a federal court of appeals to take over control of Judge Aikens’ handling of the lawsuit, and peremptorily dismiss the case. But the Seattle federal appeals court slapped down the federal government’s bid, ruling that their attempted appeal was a “drastic remedy” on the claims brought by the children because the issues would “be better addressed through the ordinary course of litigation.”[9]

Commentators everywhere exclaimed that the appeals court ruling affirmed the federal district court that the children could proceed and signaled a landmark ruling on the science and causation of greenhouse gases and climate change. In a classic traditional role, the courts– our third branch of government—have stepped in to interpret what the law is to remedy the unjust deliberate indifference of government and climate deniers. Since Juliana and twenty-one other children filed their suit in 2015, the cities of New York and San Francisco filed suits against Chevron, ExxonMobil, ConocoPhillips and Royal Dutch Shell to pay for the damage and infrastructure needed to combat climate caused by the sale and burning of fossil fuels. Like in the lawsuits against the tobacco industry, the fossil fuel industry has known fossil fuels have heated the climate beyond acceptable levels and endangered cities, water, and the planet. And like the tobacco industry, they’ve done what they can to foster denial and obstruction to the required shift to renewable energy and rapid reduction of CO2 and greenhouse gases.

Jim Olson, President and Founder

In a way, climate change denial by government and industry is reminiscent of the Scope’s trial, fictionalized by Spencer Tracy as Darrow and Frederick March as Bryant in the 1960s movie Inherit the Wind. But the passion of Bryant was based on a genuine belief in the deeper role the Genesis story in defining the human’s place in a world created by God. The coming climate change trials are not so much a denial of science or genuine passion of belief, but a corporate defense of a fossil-fuel grip on the economy, to protect a financial empire that is causing damage and a growing danger of the collapse of humanity with a shorter and shorter period to do anything about it.

Postscript:

Congratulations to lead attorney in Juliana v U.S., Julia Olson (no relation), and Professors Michael Blum (Northwest School of Law, Lewis and Clark, Portland) and Christina Woods (University of Oregon, Eugene), and so many others. Is there any question that the effects of intense storms on the people of Puerto Rico and Houston or the raging fires in California are attributable to climate change? The Children, their lawyers, scientists, and so many organizations and people are bringing justice to those injured by breach of government affirmative duties to protect water, atmosphere, life, and the public trust.  We are grateful. The public trust in water and our hydrosphere are the heart of our mission and work. www.flowforwater.org. Join us, read up on background articles, and share. The time for mitigating climate change effects is short.


[1] E.g. Alec L. v. Jackson, 853 F Supp. 2d 11 (D.D.C. 2012).

[2] Juliana et al. v. United States, 2016 WL 183903 (Magistrate., Ore. D. Ct., Order, Jan. 14, 2016).

[3] The public trust doctrine imposes a “solemn” duty on governments, as trustees, to protect certain waters—oceans or inland lakes and streams of the state, or their tributaries, from impairment or from interference with boating, fishing, swimming, bathing, drinking, navigation and other public uses of these waters. See Illinois Central R Rd. v Illinois, 146 U.S. 387 (1892); Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich L. Rev. 471 (1970); James Olson, All Aboard: Navigating a Course for Universal Adoption of the Public Trust Doctrine; 15 Vermont J. Env. L. 135 (2014); see generally, Flow for Love of Water, a Great Lakes law and policy center dedicated to the preservation of citizens public trust in water and nature. www.flowforwater.org.

[4] Juliana v U.S., supra, 2016 WL 183903.

[5] Juliana v. U.S., 217 F Supp. 3d 1224 (2016).

[6] See Mary Christina Woods, Nature’s Trust (Cambridge Univ. Press 2013).

[7] James Olson and Elizabeth Kirkwood, FLOW Report to International Joint Commission on “Draft International Joint Commission 10-Year Review on Protection of the Waters of the Great Lakes Basin,” (June 30, 2015).

[8] Juliana, supra, 217 F Supp. at 1275.

[9] United States v U.S. Dist. Court, 2018 U.S. App. Lexis 5770 (9th Cir., Mar. 7,  2018); “We’ll See You in Court: Kids Climate Moves Forward After Judge Denies Trump,” www.ecowatch.com/kids-climate-lasuit-trial-2544414443.html. Mar. 11, 2018.


Why Public-Private Partnerships that Own or Control Our Cities and Towns’ Water and Infrastructure Are Not the Answer

In this space two weeks ago I demonstrated that plans by President Trump and Governor Snyder to rebuild our deteriorating public Infrastructure will force shrinking or financially strapped cities and towns to turn to private water companies and investors.  The Trump plan would cut the historical federal 75 percent share of grants or low interest 2 percent loans to 25 percent, and then fund only 20 percent of the $800 billion that’s needed to fix our country’s water infrastructure.  Snyder’s Michigan plan would provide state funding of approximately $110 million a year, or only 10 percent of the $1 billion a year that’s needed to maintain and restore Michigan’s infrastructure. It looks like “trickle-down” financing for our cities and towns, with residents facing greater financial burdens and higher risks to health or even loss of water from their taps.

In short, local governments and their residents will be left little choice but to turn to Wall Street investors or large private water firms like American Water Works, Aqua America, and American States Water Company. A number of international water corporations want to seize an even larger control of water supplies, infrastructure, and the revenues from ratepayers. These include Suez, RWE or Thames, Vivendi, and Veolia. Large equity firms are also looking for attractive investments that take advantage of attractive municipal water revenue streams. The reality is that the life expectancy of a large portion of our country’s geriatric public water infrastructure is short, and the move to remove legal or perhaps constitutional barriers to the comingling or outright ownership by private corporations and investors poses a major challenge in the years ahead

Most of our Municipal Water Systems Are Public

About eighty-five percent of municipal water systems in this country are publicly owned and controlled and accountable to residents under constitutional and public governance.  Private water corporations own or control the other 15 percent. In the last few years, the experience or prospect of private ownership of public water—Detroit water shutoffs and Flint lead and health crisis– has fomented public opposition if not outrage.  Cites like Indianapolis, Pittsburg, and Missoula are taking back their pumps, pipes and taps because of inefficiencies, lack of governance or accountability, high water rates, or broken promises to repair broken infrastructure. Missoula went so far as to exercise condemnation to reclaim its water and water system from the Carlyle Group.

On the other hand, the private sector has increased investment or ownership in public water utilities five-fold in the past 10 years through claims of efficiency, productivity and service, and stable water rates for residents and customers. Private firms argue that private markets bring about efficiency and lower water use; more recently, the private sector claims that because governments are not willing to raise taxes and monies to finance public infrastructure, private equity firms offer a pathway to amassing the vast sums of money necessary to rebuild and repair our infrastructure.

In order to make this pathway more attractive, some states like Pennsylvania and Illinois have passed laws to remove traditional barriers to private investment.  For example, municipal water system revenues are protected from raids by the local government council to transfer monies into the general fund.  In addition, valuation of municipal water systems is often based on a cost-based accounting discounted for the remaining life of assets. As a result, to make privatization more enticing, Pennsylvania passed a “fair value” law that increases the fair or market value of the water system assets to generate more revenues from a sale for cities faced with financial failure or shortfalls; this included a relaxation on transfer of money from a sale of the system to the general fund.

Privatization or Public-Private Partnerships

The jargon coming from big water companies, private investment firms, the World Water Forum, World Bank, and governments influenced by a “privatize-everything” ideology is called “PPPs” or “P3s”—Public Private Partnerships. What are they?

PPPs or P3s were invented to mute the negative connotation of privatization of water or other public commons and services.  They include any form of private ownership or equity investment, leasing, control, or share in revenues in public infrastructure that achieves an acceptable income stream or rate of return for a private corporations, investors, and shareholders. Private equity ownership or investment is just that—private. And if private, there is less government control and accountability. Residents must take their concerns, problems, and complaints to a private concern.

As noted by the Center for Progress in a 2016 report on P3s, PPPs involve a form of privately held investment (although the private corporation may be on public stock exchanges) and require a rate of return on investment  of 8 to 14 percent, In part because the income is subject to federal income tax. By comparison, municipal or public infrastructure bonds do not affect public ownership and control of water and infrastructure for residents and customers, and the borrowing cost for municipal bonds currently is around 2.5 percent, and is not subject to federal income tax. 

The point is this.  PPPs are simply another idiom for privatization based on monopolistic control and private control of the money generated off the backs of residents and customers of water systems in our cities and towns.  Because of this, it is important to understand a few things about PPPs or privatization of infrastructure.

PPPs or Public Water and Infrastructure

The real question remains, should public water and infrastructure be privatized? And if a municipality chooses to privatize to raise the cash needed to fix and repair infrastructure, what are the basic principles that should apply? Whether through private or public investment and control, the upgrading, repair and maintenance of this infrastructure will require close to $1 trillion over the coming decade.

Those supporting PPPs claim privatization benefits cash-short communities by offering the money needed to upgrade and repair, promote efficiency and conservation because of the private profit motive. If the Trump administration and states like Michigan squeeze communities by slicing available funds or loans to cover only 25 or less percent of the investment needed to restore our water systems and operations, there may be no choice at all.

So, what are municipalities and their residents in for? Most reports and commentators give privatization and P3s a bad grade. As pointed out by Padraig Colman in the “State of the Nation” series on privatization, The Financial Times called privatization of water “an organized rip-off,” because British companies had sluffed off sewage, polluted waters, and even charged ratepayers to pay for private debt. While less bombastic, here are some of the pitfalls of PPPs or privatization of public water infrastructure and services:

  • Efficiency from privatization and pricing according to markets or through entrepreneurship is less likely to occur, because the privatization does not create a market, it creates a monopoly.
  • Moreover, experience in general does not support the claim of improved efficiency.
  • Because private investors and companies have a legal duty to return money to shareholders, and because income is taxed, there is a constant pressure to raise prices to cover large capital upgrades and repairs and continued satisfactory dividends and share values. Generally, private systems charge more.
  • Some private acquisition contracts include financing, design, construction, and then maintenance, repairs and maintenance, and can include higher profits built into costs, higher costs of financing, and again higher rates.
  • Cost-cutting measures sometimes result in poor service and short-change the condition of the systems and risk public health.
  • Data and information about the operations are private or harder to obtain, so there is less transparency and accountability.
  • PPPs result in the removal of governance based on fundamental public trust in governments promoting the public interest or the constitutional rights and duties that protect the water, infrastructure, and citizens or residents from inequality, unfairness, and health and environmental risks.

What should residents, officials, public water professionals, and citizens draw from over a hundred years of public water services systems and all of this current debate between public and private ownership and control of our water?  In a word, “Beware!”  Beware of the dangers and pitfalls of privatization and PPPs or 3 Ps. Beware that one size does not fit all, that there are many variables, local conditions, financial and health exigencies, and the long-term public interest that come into play. Beware that if any form of privatization of public water infrastructure, water sources, or services is proposed, to insist on the following declarations or principles, whether the water system and services are public, quasi-public, or private:

  1. Declare all water public; just because our natural public water commons enter an intake pipe does not mean this water loses its public common and sovereign status. Government at all times must manage and provide water as sovereign for the benefit of people.
  2. Impose public oversight with a duty to protect the public service, public interest, public health, and public trust in water and the infrastructure the water passes through;
  3. Establish rights and Impose duties of accountability, notice, participation, equal access to safe, adequate, clean, affordable public water;
  4. Guarantee principles of due process, equal protection of law, and right to basic water service;
  5. Guarantee affordability and equity in access and use of water by all residents and customers;
  6. Implement fair and innovative pricing, subject to public oversight, a public utility or water board, with a statement of rights, duties, enforcement, and government process to assure safe, clean, affordable public water.

Jim Olson, President and Founder

The next article that will appear in this space on public water infrastructure will explain why water is public, why water in a public or private system must remain public, why the infrastructure itself that carries and delivers public water is subject to a public oversight and legal accountability. It will then describe some innovative approaches taken by public and other water services systems to come to address the challenges they and all of us face in the 21st century. Water, water infrastructure, and services are not just physical things or “assets.” They are a sovereign commons inseparable from the people, life, and quality of life they support.


 

Our Public Water, Infrastructure and Health:  Here Come the Profiteers!

Our public water systems are in crisis.

Every person and business in every city and town in the U.S. will face increasing competition for water, more and more repairs, improvements, and replacement of crumbling infrastructure or preventing illness or pollution. They will also face the wild card of increased frequency and intensity of rainfall and flooding, like Houston and Puerto Rico, or at the opposite extreme drought, high temperatures and winds like those that fueled have fueled the fires and destruction across California this past year. There’s simply no way out, and the stakes, threats, and costs are rising faster than the waters along our coastlines from melting glaciers on Greenland. For years, professionals, towns and cities, policy and science organizations, neighborhoods, citizens, and businesses have pleaded for a new federal plan to redesign, rebuild, and improve America’s public water infrastructure, one that continues to provide safe, clean, affordable water for all in this Country.  Except for a few wealthier states and areas of the country, the federal and state governments have not been able to agree on laws that will address this now close to insurmountable crisis.

On February 12, 2018, President Trump unveiled his water infrastructure plan to make “America great again.” The Trump plan pegs the cost of rebuilding the country’s water infrastructure at $600 billion. To pay for this, he wants to reduce the federal government’s share from 75 to 80 percent level to 20 percent; this will quadruple the state and local share from 20 percent up to 80 percent. This means state and local governments will have to compete for a share of the $120 billion a loan application process that appears to reward those states and cities who demonstrate innovative funding partnerships with private investors. 

The plan would leave it to each state and local government to figure out how to pay for their remaining 75 to 80 percent share of the costs of a project. Without the larger federal grant or even loan share, states and local governments will have to find ways to finance the $600 billion for water infrastructure. Historically, this has meant tax-based bonds or revenue bonds tied to increased fees by users.  Most users are already maxed out with what they can afford. Stagnant cities and rural areas struggling for population will become prey to private investors who promise to fix the system in exchange for a purchase or long-term lease of infrastructure.  In short, President Trump’s plan will convert our public water infrastructure systems into private water infrastructure systems. His vision to make America “great again” is to encourage and speed up the private ownership and control of our public water commons, so fundamental and essential to the health, well-being, and liberty of every American.

Two weeks earlier, Michigan’s Governor Snyder announced his roll out of a water infrastructure plan for rebuilding the pipes, and pumps, and facilities for water supplies, delivery, and treatment of wastes. Governor Snyder puts the tab at $13 billion. But he proposes only $110 million annually from the state, paid for out of a fee to all users of water systems in Michigan. According to the Governor’s 21st Century Infrastructure Council, the real cost to upgrade and fix Michigan’s pipes and systems is closer to $1 billion a year. The plan does not explain where the additional 90 percent will come from, but the answer is obvious: local governments. So not only will there be a state user fee, local governments will be forced to seek revenue bonds to make up the difference, all of which will come out of the fees of their users. In effect, costs will rise even more steeply, and small towns and our cities will not be able to afford the plan. Instead, there will be increased risks of safety, pollution, disease and health threats, and continuing rises in patches and repairs, that will at some point in time result in another Flint or Detroit with illness, health risks, and water shutoffs because people will not be able to pay what will be disproportionately high-water fees. 

The combined effect of the Trump and Snyder plans is to remove obstacles and encourage private funding and investment and markets to rebuild, control, and operate public water and infrastructure. Private firms are already vying to rebuild the federal highway system in exchange for private control and profit. Privatizing prisons has been a disaster. Governor Snyder recently ended a privatization of food service in schools. The track record of privatized municipal water systems has been somewhere between checkered and a failure. The most tragic was the transfer of Cochabamba, Bolivia’s water system to Bechtel through strings imposed on the financing by the World Bank. When Bechtel took over and placed meters on peasants’ wells, a massive protest forced Bechtel to leave the country. 

Here in the U.S. on a less dramatic but equally compelling scale, privatization has not worked. Promised upgrades are not made or fall short, leaks and failures continue, and the price of water for residents and businesses rise. In 2012, Pittsburg entered into an agreement that promised the French water giant Veolia one-half the money saved by conservation measures as an incentive to fix the system. Water prices soared, some inflated by as much as 600 percent, and thousands of billing errors resulted in turmoil with little access to correct them except protest. Worse lead in pipes and water increased, and by 2016 Pittsburg terminated Veolia’s contract and sued for abuse and breach of trust, gross mismanagement, and maximizing profits over the interests of the city and its citizens. From Bayonne, New Jersey, to Atlanta, Georgia, Missoula, Montana, the story has been the same. In Missoula, after great promises and public support of the city’s sale of its water system to Carlyle Group, the City had to file a condemnation lawsuit to get its water system back before the corporation unloaded its water infrastructure asset for a cool $327 million. The court ruled in favor of the city, transferring the water system back into public hands and oversight.

There is a bitter irony in all of this: Water is public, held by each state as sovereign in public trust to assure health and access to safe water for each person. While a homeowner, farmer, or business does not own the water, each has a right shared in common with others to reasonable use of water from a stream or lake bordering or the groundwater moving beneath the land. In order to protect public health and pay for these new water utilities and their infrastructure, state law prohibits homeowners or occupants from using or installing private water wells or septic systems in areas served by public systems. People will pay even higher and higher costs for the public water they are already entitled to use under our laws and federal and state constitution.

But there’s another twist to this irony. Governor Snyder’s plan for Michigan sets aside the first $110 million to inspect and put a value on our water infrastructure as “assets.” Assets generally refer to property on a balance sheet. If our water is public.  If our water is public and sovereign, and our water infrastructure is public and sovereign, backed by users and taxpayers under full faith and credit of our state, how can it be treated by Governor Snyder merely as an “asset?” One clue is the push to create what are called 3Ps—Public Private Partnerships—which denote any combination of ways to provide for private investment and profits or a rate of return from water systems’ customers.  In order to attract investors and maximize value and gains, water infrastructure must be inventoried and appraised as an “asset.” When the words “3Ps” pop up, proceed with caution.

Water and our public infrastructure has always been public. Citizens, businesses, cities and towns should take a serious pause before jumping on the privatization train.  It is not all gravy, if at all.  The link between our public water and public infrastructure to our health, life, and enjoyment of our homes and communities is to close, too tied to public accountability and transparency, for us to hand over to innocuous acronyms like 3Ps, a nicely spun phrase intended to turn your tap over to private profiteers.

Jim Olson, President and Founder

No matter how we as states and local governments or neighbors solve our public water crisis, one thing is constant: We must vigilantly protect and maintain our water and infrastructure public. There are some things that are common and public by nature, which leads to a question:  President Trump and Governor Snyder, where are the interests of the “people” and “public” and “public sovereign water” in your water infrastructure plans?


Public Trust Tuesday:  A Big Win for the Public Trust

byzantine-empire-public-land.-trusts

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


Score a big win for the public trust doctrine.

In what can be termed literally a landmark decision, the Indiana Supreme Court on February 14 ruled that the state’s public trust rights to the Lake Michigan shore extend to the ordinary high-water mark.

FLOW founder Jim Olson called the decision “exciting” and said it was an even bigger affirmation of the public trust doctrine than a 2005 Michigan Supreme Court ruling because it carefully explained the basis of sovereign public trust ownership by the state.

The ruling came in a case brought by landowners who sued the Indiana Department of Natural Resources, seeking exclusive access to all land up to the water’s edge. Public trust advocates argued that Indiana received land below the ordinary high-water mark at statehood under the public trust doctrine, and that an act of the legislature is required to deed such land to a private party.

But Olson said the Court should also have articulated a list of traditional and incidental public trust uses, like swimming, bathing, and staging, sitting or other uses that are incidental and necessary to those traditional uses that are protected by the public trust doctrine. “In finding ‘at a minimum’ walking the beach below the ordinary high-water mark is protected, the Court exercised restraint and left the scope of public trust uses unclear until enumerated by the legislature,” he said.

“The public trust is a dynamic and flexible doctrine, dependent on changing public needs and uses of public trust lands or waters,” Olson said. “Certainly, walking and fishing were predominant in earlier centuries, but the use of our public shores and beaches below the ordinary high-water mark for access and their public use and enjoyment has encompassed swimming, canoeing, kayaking, surfing, kite boarding, and similar uses. These uses for safety and convenience necessarily include staging, sitting, and even sunbathing incident to those traditionally protected uses.

The “public trust doctrine is a court-made doctrine common law doctrine, so the Court was well within its traditional judicial powers to enumerate those uses rather than defer to the legislature,” he added.