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 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.”
The Michigan Environmental Protection Act of 1970 (MEPA) empowers the Attorney General and citizens to pursue court action “for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” The Constitution and MEPA are a one-two punch to pollution that clearly assigns a trustee’s role to the state.
Just as significant is the common law of public trust, which protects navigable waters from interference or impairment and imposes a mandatory duty on governments and private persons if their conduct (action or inaction) results in such an impairment or interference. The state holds these waters in trust for the benefit of citizens, to prevent such impairment or subordination of paramount public access and uses from subordination, alienation or interference
The Pennsylvania high court rejected the argument offered by state officials that a strict interpretation of the Pennsylvania constitutional provision would impede economic development. Business interests in Michigan offered the same attack on MEPA during legislative consideration, with one association lamenting, “If the bill, as written, ever became law, there’d be no need for anyone, anymore, to feel the slightest concern for further [industrial] plant development. There wouldn’t be any.” This argument has proven absurd.
“The Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee,” the Pennsylvania Supreme Court held.
“It clearly mandates that the Commonwealth can no longer treat our natural resources as government property,” said John Childe, an attorney for the Pennsylvania Environmental Defense Foundation. “The only right the Commonwealth has is to act as trustee of our natural resources. The Court has specifically determined that that duty requires compliance with all legal fiduciary requirements of a trustee.”