Tag: Public Trust Doctrine

Breaking the Cycle of Great Lakes Ruin and Recovery

Above photo: Jane Corwin, US Commissioner/Chair of the International Joint Commission, speaks at a public hearing in Traverse City on July 24, 2019. Photo by Rick Kane.

By Liz Kirkwood

Editor’s note: FLOW Executive Director Liz Kirkwood was recently appointed to be a member of the International Joint Commission’s Great Lakes Water Quality Board.

Liz Kirkwood, FLOW Executive Director

My colleague and mentor, Dave Dempsey, knows almost everything there is to know about the Great Lakes.  He’s encyclopedic, you could say. He’s authored over 10 books, including a classic one entitled Ruin and Recovery (University of Michigan Press, 2001).  

It’s the cycle we here in the Great Lakes are all too familiar with.  

The book tells a story of Michigan’s environmental ruin that began to worsen in the early 1900s, followed by the recovery that began in the 1970s as the public clamored for a clean environment.

It is amazing to imagine that over one hundred years ago, as lax water pollution standards led to the fouling of the Great Lakes, the US and Canadian governments had the vision and foresight to craft an international treaty to address boundary water management and disputes. Known as the Boundary Waters Treaty of 1909, this pact established the International Joint Commission (IJC) to serve as the advisor to both governments in preventing, arbitrating, and navigating water conflicts.  Of the nine major water basins shared by the US and Canada, the Great Lakes is the largest and has global significance because it contains 20 percent of the planet’s fresh surface water.    

In 1972, with increasing international water pollution, the US and Canada entered into the seminal Great Lakes Water Quality Agreement (GLWQA).  The Agreement called for binational action by the governments to reduce phosphorus pollution and meet water quality goals. It also set up the Great Lakes Water Quality Board (WQB) to assist the IJC in watchdogging Great Lakes cleanup.

In the 1980s and 1990s, the IJC was considered the moral authority on Great Lakes issues, candidly assessing progress and problems. Thanks in part to the Water Quality Board, the commission made a lasting contribution to Great Lakes cleanup by defining 43 “areas of concern” (AOCs)—bays, harbors, and rivers with severe legacy contamination—that needed sustained commitment to be cleaned up. Over 30 years later, work continues on the AOCs, along with congressional funding of the Great Lakes Restoration Initiative (GLRI).

The work of the Water Quality Board continues, too. The 28-member board provides advice to the IJC for the benefit of the 40 million people who rely on the lakes for drinking water, sustenance, and way of life.  The IJC recently appointed me to serve on the Board.

The Board represents the crossroads of the Great Lakes, bringing together diverse viewpoints from tribal leaders like Frank Ettawageshik and water affordability advocates like Monica Lewis-Patrick. It is a pleasure to serve with them and to problem solve how we can bring the Great Lakes community together to respond to old and new problems in the Basin. This work depends on developing key priorities and scientific goals to measure progress, coordinating strong and committed implementation among federal, state, and provincial environmental agencies, building stronger and new partnerships and alliances across these lakes, lifting up silenced voices to ensure water justice for all, and educating and empowering all peoples about the vital importance of protecting the health of our common waters.

It’s been almost 50 years since the two nations entered into the Great Lakes Water Quality Agreement, and during this time, we have watched rust-belt contaminated urban cores rebound and polluted ecosystems revived. But we also have witnessed a rollback of major federal environmental regulations and laws, the Flint lead crisis, Detroit water shutoffs, lack of investment and crumbling regional water infrastructure, lack of safe, affordable drinking water, wetland destruction, water privatization, legacy and emerging pollutants like PFAS, and unprecedented climate change impacts.

Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound. Instead, we must imagine the future we want, where natural and human ecosystems can thrive and prosper together.

To do this, we must challenge traditional assumptions and ways of thinking. We must draw not only on science but also on traditional ecological knowledge (TEK). Traditional ecological knowledge (TEK) is a relational process for indigenous peoples that is built through experience and relationships that are difficult to incorporate into non-indigenous information systems and decision frameworks. We must design and enact bold policies that acknowledge the interconnectedness of human health, economic prosperity, and ecosystems.

With public trust doctrine protection, we can steward our waters as a shared public resource from one generation to the next and ensure multigenerational equity. Healthy economies and communities depend on healthy ecosystems. It’s as simple as that. The future of the Great Lakes depends on a vision and plan based on a water-economy that embraces a new water ethic at its center.

I am honored to serve on the Water Quality Board for the IJC and it is my great hope that we can work together to develop recommendations thattranslate into meaningful bi-national actions designed to protect the long-term health of the Great Lakes.

Protecting the Great Lakes is “A Matter of the Heart”

On #GivingTuesday, a FLOW supporter shares loving words on water

By Jerry Beasley

I do not come by my love of water as a result of growing up where there was plenty of it. So I might say that I don’t come by it naturally. But it’s real, and here’s the story of why.

I grew up in Nashville, Tennessee. There were no natural lakes to swim in. The Cumberland River was the only nearby body of water, and it was busy with industrial boat traffic—so there were no swimming holes. I do remember playing around in local creeks, scouting for crawdads and little fish. The truth is, I was afraid of the water. When, at the age of nine, I signed up for a class at the YMCA where I would be taught to swim, I panicked and quit.

I did finally learn to swim—badly—as a young teenager, and I remember long, sunburned days at Cascade Plunge, a 45-minute bus ride from my home.

To keep this story short, I’ll leap ahead to the time when I moved to a small farm on the Eastern Shore of Maryland, overlooking the Sassafras River, one of the several Eastern Shore tributaries of the Chesapeake Bay. My daughters were then very young, and because the summers were hot, we spent long afternoons on that river, where the girls learned to swim. Just a few miles upstream, the Sassafras was no more than a trickle, but where we played and swam in it, the river was as wide as the Mississippi, and as majestic. It inspired a kind of awe. I never became a really good swimmer, but being there changed me, for I then first realized that I had a genuine love for the water. My girls loved the water, and I think they taught me to love it too.

Much later, in the early 1990s, my new wife and I began traveling together in the summers from our home in Delaware to Northern Michigan—to her family cottage on Intermediate Lake in Antrim County, part of the Chain of Lakes watershed, not far from Traverse City. The cottage had been in her family since 1918, and she had been spending summers there for much of her life.

A whole new world of joy opened for me. Everyone in her family loved the lake with a great passion. Her father built sailboats and spent hours on the water in them. Everyone swam. Evenings on the dock were a long tradition, and the beauty of the sunsets was wondrous to me. From that point forward, we both felt that we always needed to be near water. We soon bought a small house on the Elk River in Maryland, like the Sassafras, an Eastern Shore tributary of the Chesapeake and, from our beach, equally majestic.

Watch Jerry Beasley read from “A Matter of the Heart”. And please consider supporting FLOW on #GivingTuesday.
But it was during those days in Michigan almost 30 years ago that I fell so deeply in love with water, in a new and completely fulfilling way. I marveled at the fact that Michigan had so many miles of Great Lakes shoreline, that it had more than 11,000 inland lakes. Truly a water wonderland. When my wife and I were ready to retire, we decided to move all the way to Traverse City so that we could be near the family cottage and the water that makes it such a special place for us. And the bonus is that when we’re not at the cottage we have the magnificence of Grand Traverse Bay.

Now, as every reader of this blog post already knows, our water legacy is under grave threat, and there are many people, individually and in organized groups like FLOW, who are working fiercely to save it, producing studies and launching campaigns to inform and engage the public. All of this is essential, and without it, the battle will almost certainly be lost.

But the thing I learned many years ago, as I passed from ignorance and something approaching indifference to passionate love, is this: that what is most fundamental about our relationship with water is a matter of the heart. Love preceded knowledge for me. Without the former, I would never have moved on to the latter.

To put it another way: What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.

Minnesota Water Train Proposal Exposes Flaw in Great Lakes Compact

Jim Olson, FLOW Founder

By Jim Olson

A railway company recently proposed extracting 500 million gallons of groundwater per year from Minnesota and shipping it to water-scarce states in the southwestern United States.

Although the water that would be diverted lies outside the Great Lakes Basin, and Minnesota officials said they are not likely to approve the water export proposal, the resulting controversy has renewed analysis of the Great Lakes Compact, which is designed to protect the Lakes from water diversions. And the heightened scrutiny is a good thing because part of Minnesota lies within the Great Lakes Basin.

The Great Lakes Compact has suffered from a primary weakness from the very beginning: it does not address the sale of water or consumption outside the Basin or watershed (with the exception of diversions in counties or communities that immediately adjoin the Basin). To provide for water used or diverted in products, there is a “product” exemption buried in the definition of “diversion” that permits tomatoes grown within the Basin, for example, to be shipped outside the watershed.

But buried in the definition of “product” is “water removed by human or mechanical means and transferred out of the basin” as a result of industrial, manufacturing, agriculture processes or products, and here’s the kicker, “… or intended for intermediate or end-use consumers.” So, the Compact contains a water-as-product export provision—at least to the extent that water is placed in a container. But, here’s another kicker. There is no limit to size, so railroad containers filled with water and “intended for intermediate or end-use consumer” would be exempt from the diversion ban for purchase or use by famers in Colorado, or any place on the planet.

The Compact Sec. 4.10 states in the bottled-water or “Bulk Water Transfer” provision, that water in containers larger than 5.7 gallons “shall be treated… in the same manner as a… Diversion.” What’s wrong with this language? It’s a Band-Aid that covers up the product exemption. The clause “shall be treated in the same manner as Diversion” concedes that water in a container of a certain size is not a diversion, but a product; rather than place an exemption for bottled water directly into the definition of, or as an exemption to, diversion, the negotiators and Compact tacked on a Bulk Water limit on the product exemption. But the problem is, water in any size container, whether in a railroad car or the deck of an ocean barge, is defined as a product.

So, under international trade pacts like the North American Free Trade Agreement (NAFTA) and trade laws, defining water as a “product” is admitting that this is a regulation, not a ban on bulk water diversions. The regulation of water as product lays a heavier burden on the Office of Great Lakes Governors and citizens of the Great Lakes to justify to foreign investors and countries that the export of water in large containers will not harm the environment. Worse, treating water in a container as a “product,” not a diversion, shifts the expectations of investors outside the region, who can demand equal treatment and/or massive sums of money as damages for applying the regulation to prohibit or deny their “right” to export water in containers. Why? 

A regulation to restrict the export of water as a product, as opposed to, say, a diversion, admits that the right to export water as a product exists. As indicated above once it’s a product, the Great Lakes states through the Compact governing body, the Office of Great Lakes Governors, will have to prove the regulation of the water prevents harm. If a bottled water company that has received a permit can ship water in containers less than 5.7 gallons under a permit, because a state has determined there’s no harm to water resources, how can the Great Lakes states argue water in a 10,000-gallon container from the large-volume water well can be “treated as” a diversion, when the amount of water pumped from the same well and put in a large container is no different than the amount shipped in bottles?

So, then the issue becomes factual: Can the export of water in containers be prohibited by the regulation to “treat it as” a diversion if it can be shown to harm or threaten harm to the environment or conservation. Whether water is in large containers is less than 5.7 gallons or more than that amount, if the impacts do not threaten the water, environment, or the conservation of a non-renewable resource, under international trade laws, like NAFTA or the General Agreement on Tariffs and Trade (“GATT”), its export cannot be stopped.

This is a serious problem. It was there in 2005, when the eight Great Lakes states signed the agreement that became the Compact; those close to the ink before it dried knew it, but nothing was done about it. The proposed water train from Minneapolis to Colorado may never be permitted, and it shouldn’t be. But it is a warning: the “product” exemption or loop-hole is a door that needs to be shut.

FLOW is developing a report and comment on weaknesses and future questions for states in the Compact. Clarifying the “product” exemption in the Compact is one of the critical measures that needs to be rectified. It could be done by the Compact Council through an interpretative guideline of the definition of “product.” It could be done by the legislature of each state, because the Compact allows states to impose more stringent measures than the Compact. Essentially, the fix would remove the “intended for intermediate or end-use consumers” clause in the “product” definition, and then declare that “water in any sized container” is not a product.

In the meantime, and this is critical, the best thing the Great Lakes Compact Council can do is expressly interpret and declare under Sec. 1.3 that, “The waters of the Basin” are held in, and subject to, a public trust in the waters of the Basin,” and that any consumptive use, exemption, or other exception managed or reviewed or decided by the Council is subject to the duties and overlying principles of the Public Trust Doctrine that protects the waters and citizens, quality of life, and sustainable economy in the Great Lakes region.

Fortunately, the International Joint Commission adopted a recommendation in a 2016 report that each state adopt a public trust framework, using the public trust principles as a “backstop” to future threats to the Great Lakes. The water train proposal is just such a threat and should be the impetus for the Council and states to fully implement the public trust principles that apply to the Great Lakes and their tributary waters. If not, the waters of the Great Lakes Basin could very well lose in disputes between foreign interests abroad or those in other states.

It is time for all of us who understand the essential life-giving importance of water in the Basin where it falls and flows to join with Minnesotans to stop the water train notion in its tracks, and to implement the straight-forward amendments of our water laws in each state to shut the door before the excessive demand for water in a worsening world water crisis pushes it wide open.

The Multifaceted Benefits of Regulation for the Economy and Environment

Report author Skip Pruss

By Skip Pruss

This article is excerpted from the third of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss, that make the economic case for government’s role in protecting the environment. The third policy brief, “Resetting Expectations: The Multifaceted Benefits of Regulation for the Economy and Environment,” is available here to read or download.

Pruss’ first policy brief in the series, “Resetting Expectations: Government’s Role in Protecting Human Health and the Environment,” is available here in executive summary and in full.

The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. (FLOW will unveil the last brief in early December.)

FLOW convened an environmental economics public listening session on Nov. 13 in Traverse City and will hold a second one on Dec. 5 in Grand Rapids.


Common to the understanding of economic conservatives is the notion that government regulations interfere with “free markets,” serve as a brake on economic activity, and stifle innovation and competition. The term “regulation” itself suggests to many burdensome “red tape” and unnecessary interference in the market economy.

The evidence proves quite the opposite. Regulations, properly designed and implemented, can be a powerful force fostering innovation in product design, advanced materials, and manufacturing processes. Regulations can reduce manufacturing costs for industry and business, enhance competition, reduce business risks, and expand and create new markets for goods and services.

Environmental regulations, in particular, have created a huge global market for environmental technology, goods, and services. The result is not only marked improvement in the quality and vitality of ecological systems, but health benefits accruing to the public that are valued at trillions of dollars.

Environmental regulations can catalyze needed change in otherwise stagnant areas in business, agriculture, and government. The protection of the Great Lakes freshwater system is a case in point. Billions of dollars have been invested in the management of wastewater and stormwater through the creation of a network of sewers, drains, pipes. New integrated water management systems that include nature-based solutions are proving to be more protective, cost-effective, and sustainable then conventional systems.

Yet investment in superior “green infrastructure” is sorely lagging as both local government and the business community remain fixed on investing in conventional “grey infrastructure.” This paper provides a menu of possible regulatory interventions to address this problem.

Newly formed constituencies focused on policy innovation and educating community leaders on the value and benefits of enlightened water management practices are on the rise. Initiatives like “Our20 Communities,” the Great Lakes Water One Partnership, and Water First all share a vision of aligning community values around a commitment to protecting water. 

Integration of the Public Trust Doctrine into local decision-making could, over time, imbue an ethic of enlightened water stewardship, creating a proactive culture to protect and safeguard commonly held resources.

Hot Off the Presses: Keeping Water Public and the World from Burning

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

I just finished immersing myself in global public-water activist Maude Barlow’s incisive new book, Whose Water Is It Anyway?: Taking Water Protection into Public Hands (ECW Press, 2019).  Thanks to Maude and the publisher, I received an advance copy a few weeks ago on the promise of a book review, which remains a work-in-progress for next week.

But first, I couldn’t wait to share this article about the Vancouver Writers Fest and its feted authors Barlow, Canada’s leading world water leader, activist, and author of 19 books, and, then, Naomi Klein, equally visionary environmental, climate change, and green activist and writer.

Why my urgency to spread this coverage? Because the Vancouver Writers Fest has captured  the urgency of the moment due to the changing climate and its implications for the future control of, and human right to, water.

It is notable that the famed fiction writers’ conference has elevated these two nonfiction writers, whose works herald the citizens of the world to leave the past, become fearlessly engaged in life, not accumulation and consumerism, and halt the privatization of the world’s water.

Those of you who follow FLOW’s Facebook page understand that water is public and held in trust for the benefit of citizens, that privatization is not only morally wrong, but also that when it comes to our public water, schemes to privatize water are, and should be declared, legally and constitutionally prohibited.

Thanks to Maude Barlow, Meera Karunananthan, Emma Lui at the Council of Canadians, the Blue Planet Project, the World Social Forum, and the dedication of so many other individuals and organizations, the United Nations in 2010 declared in successive resolutions that water is a human right. Barlow tells this quiet, heroic story in her new, Whose Water Is It Anyway? It’s a story that should be read by everyone who cares about liberty, dignity, harmony, and the common good of people and planet.

But the deeper, highly readable story she tells is of her own personal journey, and those of others, in a fierce dedication against private control of water on the planet—privatization—everywhere in now in ways both commonplace (for example, Nestlé’s extraction of public groundwater and spring water for billions of dollars in bottled water profit) and extraordinary (e.g. Bechtel’s attempted takeover of Bolivia’s water).

Then there is Naomi Klein’s new book, On Fire: The (Burning) Case for a Green New Deal (Simon and Schuster, 2019), a book that calls on all of us to step into the future now, by giving up rampant material consumerism that is killing the planet, and lighting the fire of a movement that turns on-end our gorging ourselves on the planet and each other—a movement in which we turn to each other and what is good for the planet. 

Preachy? Not really. I’d call it a practical, common sense call to action for all of us to join in the creation by FLOW and the Council of Canadians of “Blue Communities”  that put water first as if our lives depended on it: Good for all of us, especially children and grandchildren everywhere who will be facing the turmoil and dangers of an over-heating planet in 30 years from now.

So, read the article, and, yes, pick up a copy of these two books! Then take action, because these two authors help show the way. And dive into FLOW’s website for further insight and guidance on how to keep public water in public hands, and steep yourself in FLOW’s mission to defeat privatization and protect water as a commons through the public trust doctrine.

FLOW, City of Mackinac Island Join Legal Fight on Invalidity of Existing Line 5 and Proposed Oil Tunnel under Great Lakes

Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit

Jim Olson, President and Founder

By Jim Olson

The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line 5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.

The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.

FLOW’s Amicus Curiae Brief was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana, and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).

“This is an important step in restoring the rule of law on Line 5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoids the Great Lakes.”

Background on Amicus Briefs

On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.

In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.

The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line 5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.

FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line 5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line 5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.

Lame-Duck Disaster and Side Deals

In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine  and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.

To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.

In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line 5 under the Straits.

Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line 5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line 5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line 5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.

New Leaders Apply the Rule of Law to Line 5

In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line 5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.

In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.

Underlying Legal Framework

Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:

  1. The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
  2. There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.

In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.

When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.

You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.

As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan  aim to keep it that way.

Faceoff over Farm Runoff Heads to Iowa Court

Iowa state agencies and officials to stand trial for breach of Public Trust duty to prevent harm to streams, fishing, swimming, and drinking water

Jim Olson, FLOW President and Founder

By Jim Olson

The foot-dragging by public officials to take action against deadly algal blooms and pollution from bad farming practices finally has reached a tipping point.

It was just a matter of time before a court would step in to force state government to implement a plan to stop the high concentrations of phosphorus, nitrites, and other harmful substances reaching our public lakes and streams from large corporate farm runoff.

Food and Water Watch, a national public interest organization, and Iowa Citizens for Community Improvement have teamed up in Des Moines to file a lawsuit to force Iowa state officials and commissions for violating their duty to protect the Racoon River and the drinking water of 500,000 people.

Last year, a federal court dismissed a a similar lawsuit filed under federal law. This time, citizens and Food and Water Watch, represented by Public Justice, a national public interest law firm started decades ago by the late Dean Robb of Suttons Bay, Michigan, filed a lawsuit to protect the public trust in the navigable waters. When each state joined the Union (Iowa obtained statehood in 1846), the state took sovereign title and control over all of the navigable waters in a state in public trust for its citizens. Under this public trust the state as trustee has an obligation to protect these waters for fishing, navigation, boating, and swimming. Iowa trial judge John Hanson has ordered a trial to hear evidence on whether the state has abdicated its duty to prevent the impairment and subordination of these public rights by private interests. If the litigants are successful, the trial court will order state officials and agencies to implement a comprehensive plan to halt the continuous pollution of the source of drinking water for over 500,000 people.

Judge Hanson got it exactly right in letting this case proceed to trial. There is a legal duty under public trust law, there has been a continuing breach of that duty by the state, and it has resulted in harm and impairment to the public trust waters, resources, and public trust uses. The direct connection between the effects of activities on land that flow into public trust waters and resources is no different than if someone discharged pollutants or sediments directly into the water. In either instance, it is a direct result of needless human conduct that interferes with the natural water cycle—water falls on earth, percolates into ground, runs off into lakes and streams. Those who interfere with or harm the water in this cycle should be held accountable for damaging and failing to protect downstream public trust waters and the rights of citizens.

Watch out, Ohio officials, you’re next. I’ve argued in past blogs that the public trust in our navigable lakes and streams means that no one can pollute or impair these streams or sacrifice and subordinate the public’s rights and interests in drinking water, fishing, boating, and swimming to private purposes or interests. Ohioans and Michiganders have been plagued with annual dead zones for years now. Every summer a thick, toxic mat of green algae spreads across the western one-third of Lake Erie, endangering drinking water, killing fish, shutting down beaches, swimming, and tourism. Every year the governor of Ohio and state officials promise to do something. Every year nothing happens to stop the runoff.

Ohio’s governors and state officials have tinkered with laws to allow farmers to take voluntary actions, but have never taken action under the public trust duty to protect Lake Erie from harm, undisputedly the result of runoff of phosphorous from intensive corporate farms and extreme weather from climate change. When our leaders in the executive and legislative branches of government fail us, it is time for citizens to call on the judicial branch. Our democracy is founded on the checks and balances of three branches of government, not two.

Last week, FLOW’s senior policy advisor and noted Great Lakes policy expert Dave Dempsey called on citizens in Ohio and Michigan to take to the courts to put an end to Ohio’s truculence. I and others have argued that Ohio officials and the polluting big farms should be forced by the courts in Ohio and Michigan (Monroe County is on Lake Erie) to put an end to this blatant private confiscation of a treasured water resource that belongs to all citizens of these and surrounding states.

On behalf of all of us who live here in the Great Lakes Basin, our state government leaders must pass laws and file lawsuits to stop the dead zones and billions of dollars in damages to the businesses, cities and towns, and people. If our leaders fail us, then like the citizens of Iowa, it is time for citizens in Ohio, Michigan, and Ontario to file lawsuits under the public trust doctrine. The time for action is now.

Lake Erie: Clean It Up or Admit It’s a Sacrifice Zone

Photo: the algae bloom fed by excess nutrients from agricultural runoff returns to western Lake Erie each summer.

By Dave Dempsey

As the sickening annual western Lake Erie bloom neared its summer peak, news came that the major source in northwest Ohio of the excess nutrients feeding the bloom is agricultural runoff.

But this is really not news at all.

For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup.  There is no reason to believe next year’s 20% target will be achieved.

It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.

Where’s the outrage and action now on Lake Erie?

All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored.  Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.

An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.

In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie. If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.

There is a better way.

After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.  That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources. But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.

Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.

Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job. But it appears the states won’t fulfill their trustee obligations unless the public forces them to.

The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.  Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.

Dave Dempsey is FLOW’s Senior Policy Adviser.

Government Must Protect the Great Lakes, our Greatest Source of Natural Capital

Report author Skip Pruss

By Skip Pruss

This article is excerpted from the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment.

The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. FLOW will unveil the last two briefs in the coming months. (Pruss’ first report in the series also is available here in executive summary and in full.)

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Michigan lies at the heart of the Great Lakes, the largest fresh surface water system in the world. Harboring 95 percent of all fresh surface water in United States and 84 percent of all fresh surface water in North America, the Lakes are an enormous source of natural capital, providing direct health, economic, environmental, and ecological services to 40 million people. The Great Lakes system is a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are truly globally unique.

We in Michigan are water rich. The Great Lakes support a $6 trillion regional economy. Water is our most valuable source of natural capital, bestowing billions of dollars in ecological services by providing fresh, potable water for consumption, recreation, agriculture, and industry. Freshwater aquatic ecosystems — our lakes, streams, rivers, groundwater and wetlands — provide drinking water, produce fish, nourish unique biological niches at the land and water interface, and provide diverse recreational opportunities. Wetlands are prolific biological nurseries harboring birds, insects, waterfowl, and aquatic organisms throughout the food chain, while purifying water, storing stormwater, recharging aquifers, and buffering nutrients — essential services that are largely unknown and unappreciated. Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.

Photo: Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.

With our water wealth comes special obligations of stewardship. The Great Lakes and their tributary rivers and streams belong to the public and are held in a public trust. Government, as trustee, has the responsibility to protect the trust waters from impairment and cannot allow diminishment of water quantity or water quality. Our people, our businesses, and our economy depend on the health and viability of our Great Lakes, and others less gifted by geography will set their sights on the Great Lakes. There will soon come a time when discussions about human rights in water, growing water scarcity, and the need for a more “equitable” distribution of Great Lakes’ water wealth will elevate in Congress and state legislatures.

A recent study conducted under the Resources Planning Act, a federal law requiring periodic resource assessments on forest lands and rangelands, indicates that of the 204 water basins in the United States, 145 basins will show decreases in yield over the coming decades and nearly half may experience monthly water shortages. While climate change is projected to increase precipitation in some northern regions of the United States, increased frequency of droughts will result in reduced river flows, less reservoir capacity, and decreases in soil moisture. Globally, the situation is much worse. The United Nations reports that today “over 2 billion people live in countries experiencing high water stress, and about 4 billion people experience severe water scarcity during at least one month of the year.”

Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but, more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and who will look to our region with the belief and expectation that our water resources need to serve a larger geography. Our water wealth will be certain to attract a broad universe of water-dependent agricultural, commercial, and industrial private interests as well. At the same time, the chasm between the water rich and the water poor will grow. Great Lakes freshwater resources and the vital services they provide will only increase in value in a future where national and international water supplies become more stressed and attenuated.

Government, as the fiduciary charged with the protection of public trust resources, must use the tools and resources it has in terms of laws, regulations, and best practices to conserve and protect our water as a public good. Greater public understanding of the vital services water resources provide would empower citizens to participate more effectively in the political process and demand that policymakers and legislators take active measures to protect water. Intelligent, sensible water management and conservation practices and effective application of laws and regulations on the part of government to protect the waters upon which we all depend are imperative. Ultimately, our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our waters.

And we must learn from our mistakes.

In Honor of Ted Curran: Friend and Founding Board Member of FLOW

Photo by Marcia Curran

By Jim Olson

President and Founder, FLOW

Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.

I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.

Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed. 

Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.

This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.

He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.

Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.

Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”

As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”

These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.

Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.

A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.