Tag: MEPA

Sign of the Times: Toledo Voters Pass Bill of Rights for Lake Erie

Above: A Summer day on western Lake Eire


A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.

As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.

Holy Toledo! The Frustration!

So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie? 

In a word—frustration!

Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.

In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.

The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.

Well, not exactly no action

Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.

Toledo is a Telltale Sign

On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!

Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.

What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.

Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.

Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.

Symbolism, Standing, and Redress

While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do. 

I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.

Recognizing Rights, and Ourselves, in Nature

Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.

Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action. 

When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.

The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.

Michigan, Ohio, and the Public Trust

In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.

Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.

How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.

A Flag to Rally Around

In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.

Jim Olson, President and Founder

It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.


Joe Sax, Legal Giant and Visionary, Leaves the Gift of the Public Trust Doctrine

For Professor Joseph Sax

  • “Of all the concepts known to America law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive approach to resource management problems.” – Joe Sax, The Public Trust Doctrine, 66 Mich. L. Rev. 473, 474 (1970).
  • “Any person…  may maintain an action in the circuit for the protection of the air, water, natural resources and the public trust therein from pollution, impairment, or destruction.” – Joe Sax, Codified as The Michigan Environmental Protection Act of 1970.
  • “To those for whom wilderness values… has never been of more than peripheral importance,  this book asks principally for tolerance…”… to the preservationists themselves, in whose ranks I include myself, the message is that the [public] parks are not self-justifying. Your vision is not necessarily one that will commend itself to the majority.  It rests on a set of moral and aesthetic attitudes whose force is not strengthened either by contemptuous disdain … or taking refuge in claims of ecological necessity. Tolerance is required on all sides, along with a certain modesty.” – Joe Sax, Mountains Without Handrails, pp. 108-109 (University of Michigan Press, 1980).
Professor Joe Sax (1936-2014)

Professor Joe Sax (1936-2014)

Joe Sax, father of environmental law citizen suits and the public trust doctrine and Michigan and California professor, passed away last week, leaving a legacy far beyond his 78 years. His wife Ellie Gettes Sax passed away this past December. His sense of justice, family, art, knowledge, wisdom, masterful writing, and passion will be sorely missed by his family, friends, colleagues, and the many students and fans who have had him in class or read his law review articles, essays and books.

But thank you to Joe for the legacy he left—writings that are so sound in research and reason and so visionary in real world application. Like the public trust doctrine from ancient times that he resurrected in the famous 1970 Michigan Law Review, parts of which are quoted above, his body of work will undoubtedly continue to teach students and lawyers how to protect water and the planet for generations to come.

My thoughts go to Joe Sax, his family, and colleagues, and the thousands of law students, lawyers and judges who admire or have been inspired (or jolted) by his work. He will be sorely missed by his family and friends close to him and those who knew him. Fortunately, the beacon of his work burns brightly, as it has done and will do.

I remember the first time I met him as Professor Sax when he spoke at the Michigan State University Union in 1972. I actually didn’t “meet” him that day, but heard him talk to the assembled group about a law (the Michigan Environmental Protection Act) that he had drafted and was signed into law by Governor Bill Milliken.

He spoke mostly about the idea behind it: that the water, watershed, and people who live or work there are all connected as a single natural system, and are collectively protected by this new law and by the public trust. How? Through rights, responsibility, and access (what lawyers refer to as “standing”) to courts to enforce these rights and duties and protect this natural system and trust from harm.

As a recent law graduate then working at the Michigan Supreme Court, I had seen a notice of his lecture posted on the Union bulletin board and wanted to know what it was about. I left the Union that day with one thing on my mind (like so many others, I’m sure): this was I wanted to do as a lawyer.

Little did I know that I’d be so fortunate, and Joe Sax so kind, to study under his personal supervision when I attended Michigan for my Masters in law. That he took me on was a huge gift, one I’ve wanted to return, like so many of us who have been inspired by him, in the day-to-day work that we do by applying and implementing the very values and principles he strived for and espoused so eloquently.

I treasure his trip to Traverse City a few years ago to deliver a keynote on water. I picked him on at the airport and he generously agreed to meet for dinner with Joan and Will Wolfe—friends of his and the citizen duo behind passage of the environmental citizen suit law in Michigan—and all of the lawyers, mostly young, at our firm. Even today they still talk about that evening.

Then there was his keynote address at the State Bar of Michigan Environmental Law Section’s 25th anniversary a few years back, when Joe traveled to East Lansing for another lecture. This time the focus was on accepting the reality of climate change and, as lawyers, beginning to envision pragmatic ways to prepare for the rising oceans and disappearance of habitat in flooded estuaries, wetlands and lowlands.

He wondered aloud how we as lawyers might start thinking about setting aside land use zones now for the new wetlands and sensitive habitats or spawning grounds that will be needed in the future as water levels rise along the shores of the oceans?  Or,  how should we as a society start to address the dropping water levels of the Great Lakes, preparing for the need of new wetlands in exposed lake or river beds?  Figuring out who will own these new exposed lakebeds if they become permanently dry upland property? Will these be considered private riparian or public trust lands or both?

I think about friends who had him as a professor or mentor, at Michigan and later at Berkeley, and can only imagine the stories they have, I’m sure quite similar to my own. Joe Sax wrote and taught eloquently—an artist within the linear framework of law-but he was also a tremendous influence and affected many, many people, in so many good ways.

He left a legacy of accomplishments, although that is not the way he would view them, given his respect, and I think love, for soundly researched, firmly reasoned, and artfully structured and worded writings on law, justice, the arts and culture. Rather, he left a legacy of contributions, giant contributions.  While not close to a list of his body of work, at the end of this post is a list of a few works that cannot go unmentioned.

So many other organizations, leaders, professors, and friends of Professor Sax could say or tell far more than I ever could. But we at FLOW are deeply grateful for Joe Sax and his life, and in mission we hope to fulfill in some pragmatic measured ways what he envisioned.

For in what is still the early morning of the 21st century, the world faces seemingly insurmountable threats, some that point toward global collapse if we continue on the selfish and material path that we now live as civilizations and economies. We have a choice between living in a world of top-heavy wealth of a few that pushes people and the earth’s commons to the point of collapse, or reasserting the fact that “no man (sic) is an island,” that we live in a commons and are tied by those commons to survive and live.

FLOW’s hope is to apply what Joe Sax’s envisioned for the public trust doctrine as an umbrella or benchmark that protects those parts of our world that are the commons, particularly the water that runs through all.  FLOW’s articulation and application of this vision is described in a recently published article:

A possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that view the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles. The public trust is necessary to solve these threats that directly impact traditional public trust resources like the Great Lakes and its tributary waters.  The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, watershed, through which water flows, evaporates, transpires, is used, transferred, and is discharged in a continuous cycle.  Every arc of the water cycle flows through and effects and is affected by everything else, reminiscent of what Jacques Cousteau once said, “We forget that the water cycle and the life cycle are one.” All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

Professor Joe Sax, we re-dedicate our work to you and what you stand for.

Memorial Services for Joe and his family will be held Sunday, March 23, 2014, Congregation Emanu-El, San Francisco.

[Please note that the editorializing in the parenthesis in the list below are wholly mine and should not be attributed to Professor Sax. Better to read these selections yourself]:

  • Defending the Environment – A Strategy for Citizen Action (1972) (a ground-breaking book that called for legal standing and access to the courts for citizens and urged responsibility and duty for government and everyone to protect the natural bounty of this world).
  • The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention  (a seminal landmark article that compiled and offered the public trust doctrines as a broad and deep approach to address the systemic threats to our most special places, parks, and common waters).
  • The Michigan Environmental Protection Act of 1970 (the first model and adopted citizen suit law to protect the air, water, natural resources and the public trust in those natural features and our common air and water).
  • Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971) ( some property, whether public or private, are so inextricably related to public health and welfare that protection of such lands and features preserves what is public without taking private property rights, where none can be said to have been truly expected in the first place).
  • The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich L. Rev. 1003 (1972) (Joe Sax and Roger Connors published a thorough monitoring of cases and decisions under the new MEPA; Roger Connor was the first of several Professor Sax “protégés” who worked under him to help interpret and understand the facts, data, and law evolving under what was later labeled by the Michigan Supreme Court “the common law of environmental quality”).
  • Environmental Citizen Suits: Three Years Experience under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1 (1974) (Joe DiMento published the second “report” on the MEPA with Joe Sax, this time fleshing out some of the political, statistical, and jurisprudential implications).
  • Michigan Environmental Protection Act in its Sixth Year, 53 J. Urban. L. 589 (1976, University of Detroit Law School) (Jeff published the next report, this time shaping the growing number of trial and appellate court decisions, upholding the constitutionality of the act, demanding high level of judicial review, and imposing duties on government to consider impacts and prevent and minimize environmental degradation).
  • Helpless Giants: National Parks and the Regulation of Private Land, pp. 108-109, 75 Mich L. Rev. 239 (1976) (Joe Sax had a passion for wilderness, particularly protecting the values of our national park system, and considered the authority of the National Park Service to protect those values from activities that impacted them adjacent or near the parks).
  • Mountains Without Handrails: Reflections on the National Parks (University of Michigan Press, 1980) (Joe Sax’s reasoned plea for preserving the values of wilderness and the National Parks through deep personal engagement in the parks to appreciate the “genius” of what energized the creation of the park in the first place).
  • William O. Douglas Award (for extraordinary legal achievement, Sierra Club, 1984).
  • Distinguished Water Attorney Award (Water Education Foundation, 2004).
  • The Limits of Private Rights in Public Waters, 19 Env’t’l Law J. 473 (1989). (Professor Sax pointed out that for 2,000 years water has been understood as public in the sense that it is within the crown or sovereign people, represented by government; and at the very least water has never been owned by anyone, and as such there is no right and should be no expectation of private ownership of water, merely use consistent with the larger public values represented by these common waters).
  • Playing Darts with Rembrandt (University of Michigan Press, 1999) (Here, Joe Sax goes beyond the boundaries of traditional thought, and in riveting short-story like tales of battles, scars and defacing or covering up great works of art and culture makes the case for limitations on the right to destroy or impair art, that is, unless you are the artist her/himself).
  • The Blue Planet Prize (Glass Foundation, 2007) (awarded to Joe Sax for his pioneering work and invention of the environmental citizen suit to democratize a government too much influenced by its own ends or the ends of those who influence it and protect to a degree the ecosystem on whom all depend).

I could go on, but the above selected titles are only illustrative of how deep his passion and love for beauty and the natural world and his sense of justice ran (and, through his legacy, will run). And these writings reveal how his modest but irrefutable strong force of reason and values overwhelmed (and will continue to overwhelm) or piqued his audience.

Fracking: It’s All About the Water

Hydraulic fracturing (“fracking”) for oil and gas in Michigan is the subject of scrutiny in the recent Integrated Assessment report series from the University of Michigan’s Graham Sustainability Institute.  The report confirms that the future development of tight shale formations appears to be massive and intensive in size and scope and will require unprecedented quantities of water to explore and produce these reserves.

How are oil and natural gas wells are being developed in fracking?
First a large pad is cleared, then as many as 6 or more wells are drilled on this one pad known as a “resource hub,” Then, several of these “resource hubs” are developed within close proximity to each other. Clusters of these hubs are then widely developed across townships and counties. Over the next several years, just one oil and gas company, Encana, plans to develop as many as 500 hundred wells in Kalkaska County, Michigan. Each resource hub can consume 90 to 180 millions of gallons of fresh water or more. The most recent numbers in Kalkaska County, Michigan—where fracking operations of this intense nature are underway—show that a group of these hubs in close proximity are presently using or plan to use more than 618 million gallons of water. As fracking expands in Kalkaska, reports indicate that number will be in the billions.

How will these unprecedented water withdrawals impact the groundwater and the streams and lakes within the watershed where the fracking is occurring?
The answer is no one knows. Current Michigan DNR and DEQ procedures do not measure the cumulative impact of these numerous wells and resource hubs on a local watershed and the impact on the nearby streams and lakes in that watershed. Each well permit which includes the amount of water withdrawn is approved independent of each other and does not take into account the amount of water withdrawn by the other wells on the pad and nearby hubs. It’s as if the other wells did not exist.

This is deeply concerning when put in the broader context of Michigan groundwater withdrawals. Bridge Magazine recently reported that 12 Michigan counties are already facing groundwater shortages. In light of present groundwater availability concerns, the increased consumption of groundwater for fracking operations will likely exacerbate the situation. Under current DEQ procedures for oil and gas drilling permits, there is no assurance our government can or will adequately protect our groundwater, lakes, and streams from these current and future massive water withdrawals.

What happens to all this water?
To frack the shale gas or oil reserves deep underground, these massive quantities of water are mixed with a cocktail of chemicals, many hazardous and/or known carcinogens, and sand. In Michigan, after a well is fracked, the contaminated water (“flowback”) is not treated, but is transported and disposed of in deep injection wells. What this means is that such massive quantities of water will never return to to the water cycle. We consider this a “consumptive” use of water. Other major concerns include the handling of the contaminated water. And, fracking is exempt from key federal and state regulation, including the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act. In short, these massive quantities of water are gone forever after used in the fracking process.

What can be done?
FLOW’s Chairperson, Jim Olson, and Executive Director, Liz Kirkwood, submitted comments to the Graham Institute. To strengthen water resource protections, FLOW recommends that the State of Michigan:

  • Require development plan(s) and generic or cumulative environmental impacts and alternatives as required under the Michigan Environmental Protection Act (MEPA) before a lease or leases and permit or permits are finally approved or denied;
  • Refine and strengthen all aspects of the Michigan Water Withdrawal Assessment Tool (WWAT) and require baseline hydrogeological studies and pump aquifer yield tests; and
  • Encourage cooperation between state regulations and appropriate local regulation of land use, water use, and related activities to address potential local impacts.

To learn more about FLOW’s research and recommendations, please read our Executive Summary or our Full Recommendations submitted by Olson and Kirkwood to the Graham Institute.

For more about FLOW’s work on fracking, visit flowforwater.org/fracking