Tag: Public Trust Doctrine

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

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

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

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

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

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

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

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

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

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

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

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

The Intrinsic Value of Water and the Public Trust Doctrine

March 22, 2017


World Water Day

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

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

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

Value of Water

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

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

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

Public Trust Doctrine

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

The public trust doctrine embodies four basic principles:

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

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

Public Trust and the Great Lakes

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

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

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

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

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