Pennsylvania and the Public Trust

A Pennsylvania State Supreme Court decision affirming public trust principles shows the way for the State of Michigan – if it chooses to follow. By a 4-2 vote, the Court in June held that the State of Pennsylvania has a fiduciary responsibility to act as trustee of publicly-owned natural resources. The ruling came in a case brought by environmental groups challenging the state’s diversion of some proceeds from oil and gas revenues on state land away from environmental programs. The decision is relevant to debates over the continued operation of the 64-year-old Enbridge Line 5 pipelines crossing the lakebed of Michigan’s Straits of Mackinac.  The state granted Enbridge an easement to use the publicly-owned lakebed, but given the company’s clearly documented track record of failing to act prudently to prevent a catastrophic oil spill through lack of preventive maintenance on the pipeline, the state has a trustee’s obligation to terminate the easement and halt the flow of oil. The Pennsylvania case revolves around Article 1, Section 27 of that state’s constitution, also referred to as the Environmental Rights Amendment, which voters approved in 1971: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” An analogous provision is found in Article 4, Section 52 of the Michigan Constitution approved by voters in 1963 “The conservation and development of...

Lake Erie: What’s It Going to Take?

A little more than three years after the Cuyahoga River at Cleveland caught fire in 1969, Congress approved the Clean Water Act.  It’s coming up on three years since a harmful algal bloom shut down the Toledo drinking water supply, and where are we?  We’re hearing predictions of a bigger than average algae bloom in western Lake Erie. It is too simple to say that in 1969 the culprit was smokestack/pollution pipe industry and in 2017, it’s agriculture.  Agriculture’s special place in the policy process — often untouchable when it comes to regulation — is part but not all of the story.  Scientific uncertainties are also part.  The biggest part is a breakdown in the relationship between the people and their government. Fed a diet of often insincere gobbledygook, offered symbols instead of substance, frustrated by gridlock, citizens have given up for the most part on expecting (or perhaps even believing in) transformative environmental change like the kind ushered in by the 1972 Clean Water Act. And government is happy to live down to their expectations. Without a strong and persistent clamoring from the public for a clean Lake Erie, it’s not going to happen. Many committed farmers, environmental advocates, research scientists and public officials will keep doing their good work in the Erie basin, but at this point it’s hard to see how anywhere close to the desired 40% reduction in phosphorus loadings to the western basin can happen in 8...

The Forgotten Great Lake

It’s Huron, and I have lived next to it for two years.  I rarely thought about it until 2015.  Now I think of it every day. The charms of Lake Huron quickly began to seduce me.  The beat, for one thing.  It was an unusual year in that even in mid-summer the northeast wind frequently rose and drove the lake into the beach tirelessly.  At times the pounding went on for several days and nights.  The repetition was a comfort, the way a rocking cradle is to a baby.   Once in a while I wished for it to cease, but more frequently I was glad about the reminder of the lake – of the fact that I didn’t live in the mundane nearly lake-free country around Lansing, where I had lived for many years.  This was special country. The scenic vista had a special impact.  At mid-afternoon of many summer days, the water was a wholesome deep blue while cumulus clouds ascended into the paler blue above, reminding me of the idealized drawings in the books I had read as a child.  In the presence of this scene my early youth became vividly real to me, recalling a time when the future bore a seemingly inexhaustible supply of benign summer days. The freighters became familiar.  A few of them passed through often enough that their names were recognizable – the John B. Aird a prime example. Christened in 1983 in honor of the lieutenant (pronounced left-tenant by the Canadians) governor of Ontario, the 730-footer often carried coal, iron ore or taconite pellets – or so said boatnerd.com. Sometimes the passage...

Line 5 & the Public Trust

If you’re a landlord and your tenant behaves irresponsibly, do you reward his behavior and extend his lease? Well, you are and you shouldn’t. It’s in inexact analogy, but there are some parallels in Enbridge’s bungling of maintenance on its 64-year-old Line 5 twin petroleum pipelines crossing the Straits of Mackinac. The company has repeatedly rolled the dice by failing to shore up its pipelines in a timely way despite swift underwater currents.  This has put precious Great Lakes waters at risk of a catastrophic spill. In a 22-page analysis, FLOW has documented Enbridge’s style of environmental stewardship:  “Enbridge has demonstrated a cavalier attitude toward maintaining compliance with the 75-foot maximum unsupported span provision in the easement granted by the state, while making unilateral judgments of the safety of much longer unsupported spans.  It would be folly to assume this will change.” FLOW also points out the company is allowed to use the lakebed for its pipeline crossing under an easement that the State of Michigan can terminate, consistent with the public trust doctrine — which holds that certain natural resources like Great Lakes waters and submerged lands are owned by you, as a member of the public, and that government has an obligation as trustee to protect those resources on your behalf. “Because the public trust is perpetual in nature, any private use of public trust waters and lands is subject to changes in knowledge, understanding, and new circumstances. In other words, the public trust is an inherent limitation on any use of public trust resources, and a state trustee cannot be foreclosed from terminating or modifying a...

The Story Behind the Latest Great Lakes Report Card

The U.S. and Canadian governments have released a 2017 State of the Great Lakes report.  The news is overall not good.  It’s important to understand why. One way of summarizing things is the lake by lake snapshot on page 19.  There, the governments report, four of the five Lakes are in fair or poor condition.  None of the Lakes is improving, and Lake Erie is deteriorating. Another way is to look at the individual indicators.  Of the 9, six are fair, one mixed, one good and one poor.  That’s the equivalent of a solid C. A final way is to examine the rhetoric.  The governments say:  “While progress to restore and protect the Great Lakes has been made, including the reduction of toxic chemicals, we are still facing challenges with issues such as invasive species and nutrients. In addition, the ecosystem is large and complex and it can take years to respond to restoration activities and policy changes.” But the reduction of toxic chemicals discussed here is due to measures taken approximately 40 to 45 years ago, particularly the banning of PCBs and DDT  Meanwhile, hundreds of problem chemicals are out there, and the governments have yet to propose strategies to deal with the handful of chemicals in the Great Lakes that they’ve formally declared of mutual concern. The real story behind the report card is that to governments, mediocrity has become acceptable. You wonder whether governments would even act against PCBs and DDT if they emerged as problems today. The public clamors for clean Great Lakes, and many devoted science and regulatory professionals in government are doing their best. ...