FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
New York’s Love Canal was once an instantly recognizable label to most Americans. In 1980, after toxic waste from an old chemical dump began to ooze up in the yards of a housing development built atop the dump, authorities evacuated the neighborhood. Love Canal became a national symbol of chemical mismanagement, and the impetus for the Superfund cleanup program.
Michigan officials looking for toxic waste dumps and spill sites affecting groundwater found them everywhere. That, coupled with public concern about everything from health effects to depressed property values, prompted the Legislature and voters to kick in more than $1 billion in state funds for groundwater cleanup.
And then something happened.
In 1995, state policy changed. Instead of striving to remove all contamination, Michigan went to a risk-based approach – meaning contamination could remain in the ground if means could be put to work to limit the exposure of human beings to these poisons. These means could be everything from a concrete cap atop contaminated soil to a local ordinance prohibiting the drilling of new wells into contaminated groundwater.
That saved businesses legally responsible for the contamination considerable money, but it also fostered the spread of contaminants in groundwater in many locations – often groundwater once used for drinking water.
The Michigan DEQ estimates that contaminated groundwater is coming out of the ground and discharging to lakes, streams or wetlands at approximately 1,000 locations in Michigan. It’s as if 1,000 new (and sloppy) chemical plants were sited in Michigan and were allowed to have lax or no controls on the pollution they are sending into our common waters.
The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment, and that government has a duty to safeguard these uses as a trustee on behalf of the public. By allowing contaminated groundwater to spread and pollute surface water, the State of Michigan has failed to fulfill its public trust obligations. It’s not only a breach of the public trust in water, it’s a potentially grave threat to the health of our citizens.