The Powerful Idea That Not Many Grasp

Happy Great Lakes Public Trust Day

What if I told you there is a defense against the export of Great Lakes water that is potentially stronger than any state law or the Great Lakes Compact? Would you support putting it to work to protect 20 percent of the world’s available surface freshwater?

Welcome to the public trust doctrine.

It’s the least-known, least understood and most powerful idea for the protection of the public’s Great Lakes water, lakebed and shoreline. It’s the premise of the litigation attempting to decommission the Enbridge petroleum pipeline in the Straits of Mackinac. It’s the reason the U.S. Supreme Court, in an historic 1892 ruling permitted the State of Illinois to take back a piece of Chicago’s waterfront from a private railroad. It’s the reason you are legally permitted to walk along the Great Lakes shoreline up to the ordinary high-water mark.

And it could be the turning point some day in the fight to prevent the shipment of water to parched areas of the United States.

The public trust doctrine can be traced back 1800 years. As FLOW Water Advocates says, under Roman law, the public’s right to use common resources like the waters and surrounding shores was paramount. “By the law of nature these things are common to mankind, the air, running water, the sea, and consequently the shores of the sea.” That principle was embedded in English common law, then US common law after the American Revolution, then the common law of the Great Lakes states.

What does this mean for Michigan? Well, for one thing, our idea of Michigan as the profile of two peninsulas doesn’t go far enough. The legal boundaries of the state include more than 38,000 square miles of Great Lakes surface area and lakebed, swelling Michigan from the 22nd largest state to the 11th when added to our land area. Michigan’s boundaries touch Illinois and Minnesota as well as the states of which you’d normally think.

This is the profile of Michigan:

Because of the doctrine, Michigan has in effect the largest state park in America. The open waters of the Great Lakes and the lakebed are available for public use, under the protection of the State of Michigan.

The public trust doctrine is a bedrock principle of our law. It’s there to protect the public interest. It’s worth learning about.

Any private, public or commercial existing or proposed use, diversion or discharge cannot harm the waters of the Great Lakes by materially reducing the flow, changing the levels, or polluting the waters of the Great Lakes Basin. Furthermore, those who seek to use, divert or alter the waters of the Great Lakes Basin have the burden of proof to show they will not impair, pollute or harm the water. If they do not satisfy this burden of proof, the proposed action is not permitted under the public trust.

— FLOW Water Advocates

Governor Gretchen Whitmer has proclaimed Wednesday, October 22 as Great Lakes Public Trust Day. Celebrate.