The ancient Roman doctrine guiding modern environmental fights

In an effort to protect natural resources, environmentalists and tribes are using state-level public trust doctrines to fight development.

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  Hey, it's Flora Lichtman, and you're listening to Science Friday. Every day, millions of gallons of crude oil and natural gas liquids travel from Wisconsin to Ontario through the Enbridge Line 5. So this is a pipeline that was built in the 50s, and it's been embroiled in what feels like a million legal battles because there are concerns about it leaking into the Great Lakes, one of the world's largest freshwater ecosystems. One case even made it to the US Supreme Court this year, and the latest news is a Michigan Supreme Court ruling that voided a key permit for the project siding with environmentalists. Here to tell us more is Vivian Law, climate solutions reporter for Interlock and Public Radio in northern Michigan.

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  Hey, Vivian, thanks for being here.

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  Hey, Flora, thanks for having me.

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  Give us the 10,000-foot view. What is this fight about?

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  Yeah, so Line 5 has been very controversial since its inception, almost, and it's really heated up in the past few decades, given, you know, there's increased concern over risk of an oil spill and, as you said, the largest freshwater body of water in the world. And, you know, the fight specifically could be split up into what's called the Tunnel Project, the proposed Tunnel Project, and the broader fight to shut down Line 5. So about a decade ago, concerns over a potential anchor strike and spill led Enbridge and the state of Michigan to think about alternatives to passing all this oil and natural gas liquids through the Straits of Mackinaw, which is that little strip of waterway that separates the upper and lower peninsulas of Michigan. One of the options that came up was this tunnel.

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  You know, right now, Line 5 sits at the bottom of the straits in these dual pipelines, and the proposed Tunnel Project would replace the dual pipelines with a new one encased in a tunnel buried beneath the lake bed. This is a four-mile segment that runs across the bottom of the straits. As Enbridge is trying to put this plan in place, there's been legal battles over permits. There's been a lot of, you know, back and forth in courts about whether this alternative makes sense. And broadly, there is also a fight to shut down the pipeline because, you know, environmentalists and pipeline opponents will argue that this is a project that Michigan does not need, given increased, you know, transition to clean energy sources.

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  So we have both the Tunnel Project and we have this broader pipeline shutdown fight.

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  Okay, Vivian, tell us about the coalitions fighting against this and the arguments in favor.

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  Yeah, so pipeline opponents are mostly made up of environmental groups and also tribes across Michigan and the Midwest. And, you know, they say that both the Tunnel Project and the pipeline poses a lot of threats to the Great Lakes, to the environment, to, you know, tribal resources. And then there's also Enbridge, who says that this Tunnel Project will make a safe pipeline even safer. And it's not just Enbridge that's for this plan. It's, you know, labor unions, it's the oil and gas industry, the Canadian government, and even some other states have stepped up and said this is important for energy infrastructure in the Midwest.

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  Okay, so tell us about the latest news. What's the latest chapter of this story?

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  Yeah, the most recent news was federal approval for the Tunnel Project. The US Army Corps of Engineers issued their permit to Enbridge for that tunnel plan. And Michigan tribes really slammed that decision because it was, they called it a breach of tribal treaty rights, and it was a decision made without tribes. I talked to Austin Lowe, who is the chairman for the Sioux-St. Marie Tribe of Chippewa Indians, and here's what he had to say in reaction to the federal permit decision.

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  They're acutely aware of the impact that this project will have on Indian country, and they just flat out ignored it. Plain and simple, it's one of the most disgusting things that I've ever been confronted with as a tribal leader.

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  And so, you know, that's in reaction to the federal permit. But more broadly, earlier this month, we had a Michigan Supreme Court case surrounding a state permit approval. This decision vacated a previously approved permit. And so now, you know, justices said that the scope of a potential environmental harm was too narrow, and they have to redo the permit review again, submit new testimony, new evidence, there are public hearings ahead, which will likely extend into next year. And so, you know, the federal permit was approved, but this Tunnel Project remains stalled at the state level for now.

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  Thank you for disentangling those threads for us. It's really fascinating.

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  Thank you, Flora, for having me.

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  Vivian Law, climate solutions reporter for Interlock and Public Radio in northern Michigan. The Michigan Supreme Court decision we just heard about, the one that sided with environmentalists, leaned on this old legal framework. It's called the public trust doctrine. And I know this may sound a little wonky, but please channel your inner Judge Judy and stay with me because my next guest says that this legal argument is cropping up more and more in climate and environmental lawsuits, and it's worth paying attention to. Ode Salim is the director of the Environmental Law and Sustainability Clinic at the University of Michigan Law School, where he also co-directs the Environmental and Energy Law Program. Welcome to Science Friday.

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  Hi, Flora, good to be with you.

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  Thanks for being here. So what is this? What is the public trust doctrine?

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  Great question. I think it's sort of one of the world's best-kept legal secrets, in a way. It's a really old doctrine. I mean, if you want me to go all the way back, you can find aspects of it in Greek Stoic philosophy. It first makes its way into the Roman Empire under probably Cicero in the first century BCE. The idea is that, you know, natural resources like water and air are for everyone. They're, they're common for all people. And the first time we see the concept in law is the 6th century AD in this amazing document called The Institutes of Justinian, which is a Roman Empire kind of legal code.

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  And from there, it gets adopted into English law as early as the 13th century. And then it gets adopted into American law, because we, of course, inherited a lot of English law when we became independent. So it's literally millennia old, and, and it's still there in our legal doctrines.

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  And what's the basic idea?

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  The basic idea is that certain natural resources have to be for everyone. They have to be for the public at large. Traditionally, what this meant was, in, in the Roman period, for example, it was mainly referring to oceans and their shorelines, but it was also referring to large lakes and rivers that were very easy to commercially navigate. And that certain values are really important to maintain for these resources. The value of navigation, free navigation, the value of recreation, the value of fishing and harvesting, that these things are so integral to just human life and human development

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  that it was unthinkable that this kind of property resource could ever be privatized. And the idea back then, and it remains the idea today, is that the best way to implement this, if you will, is to have the, the state, the sovereign, basically manage these resources as a kind of trustee to manage them sustainably so that these values that I just mentioned are available to the public for the present generation and for all future generations. And it's an obligation that this state cannot give away. They can't delegate it to somebody else. They can't retire it. It's there forever.

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  Okay, so how is the public trust doctrine invoked in the Line 5 case?

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  So specifically in the Line 5 case, what we're seeing is a really contemporary version of the public trust doctrine. So the state of Michigan owns title to the lake bed and has to manage the lake bed and the water resource above it and the shoreline next to it for the benefit of the public for these values that I mentioned, fishing, recreation, navigation, et cetera. And so the way it comes up in Line 5 is that Decades ago, in the 1950s, in order for line five to even exist, the state of Michigan had to grant an easement to the pipeline company Enbridge in order to lay its pipelines on the lake bed.

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  Now, today, we look back at that and we say that should have never been done because it should have never passed public trust doctrine muster, right? Because according to the public trust doctrine, it has to ensure not only that the resource and that the values I talked about are not going to be harmed, but that they're going to be improved by the new private owner. Now, today, the state of Michigan is making a decision about authorizing certain industrial activity that could negatively impact that public trust resource. The agency that's doing the permit application processing has to engage in a public trust analysis and has to make sure

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  that those activities, if permitted, are not going to harm the public trust values.

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  Where else do we see it being used?

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  Oh, it's the public trust doctrine, remember, is in all 50 American states. In all 50 American states, you have public trust resources. The coastal states, of course, have the oceans. The Great Lakes states have the Great Lakes. But even the other states that are landlocked, for example, still have large bodies of water, large lakes, large rivers, that are subject to the public trust doctrine. You know, some states on the East Coast have said you cannot prevent people from accessing the ocean shoreline. Even if all the land along the ocean shoreline is owned by private persons, somehow, some way, you've got to allow members of the public to access the ocean, to access the shoreline in order to enjoy its public trust values.

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  In other places, like in California, you have these really interesting cases that say, if the state is going to authorize the pumping of groundwater, but the pumping of groundwater is going to dry up a public trust surface water and therefore harm those values of fishing and harvesting and recreating, then that may not be allowed. You've got states like Hawaii where the courts have said, if you're going to have development that's really close to a public trust water body and the development could pollute that public trust water body, we need to do an analysis and we may not allow it to happen. So it's literally happening all across the 50 states.

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  Okay, so this has been around since Roman times. Why is it having a moment now?

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  Yeah, I think it's being used now, Flora, and I think it's being explored by many now because the public trust doctrine is, in many ways, a judicially managed doctrine, a little bit more than it is a sort of legislative regulatory doctrine. And I think there's just some real disillusionment with a number of things. First of all, there's disillusionment with the kind of federal and state environmental regulatory framework, right? All of these technical standards and these permit requirements. And I think a lot of people are saying, but we still have some really serious environmental issues and the outcomes are not what we would hope them to be, even though those frameworks exist.

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  And I think, finally, a lot of groups are seeing that the regulatory framework, there's just a lot of process and a lot of involvement and a lot of participation. And yet, the outcomes seem to be the same. We're still getting the same kinds of industrial activity permitted over and over and over again. So I think for those reasons and probably some others, more and more public interest groups and individuals who are really protective of their water bodies and their water resources are looking at the public trust doctrine as this, you know, state law, state court-based alternative to that federal environmental regulatory scheme.

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  And they're hopeful that because the doctrine is so old and therefore so resilient and so flexible in the way that, you know, judges can adopt it for modern times, I think they're hopeful that there is room in this doctrine to make some additional substantive gains.

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  Why should we care about this?

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  I think we should care about it because we are seeing so many additional developments that are sometimes being located right next to these amazing public natural resources. And I think ultimately, people have such a strong relationship to water. And I think, generally speaking, when you poll people about why they care about their environment, what they want to protect, I think the strongest numbers are, we want to protect our water. We want to make sure that it's safe, that it's accessible, that we can enjoy it, that we can fish from it and use it for other reasons. And I think it's that strong relationship to water that causes people to look for any possible way to protect water resources.

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  And the public trust doctrine has proven to be one of the best and most resilient ways to protect water resources over the centuries and across the globe.

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  Ode Salim is the director of the Environmental Law and Sustainability Clinic at the University of Michigan Law School, where he also co-directs the Environmental and Energy Law Program. Thank you for being here.

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  Thank you, Flora.

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  This episode was produced by Kathleen Davis. And if it made you feel like you were sitting in on Environmental Law 101 in a good way, why not leave us a review? Here is a really nice one we just got from Vance. Vance says, "Y'all bring out the best in each interview with a combination of humor and asking just the right questions. You're my heroes for bringing a smile to my heart and knowledge to my life." Oh, Vance, thank you so much. What a nice review. Made our day. And if the sci-fi spirit is moving you, please do leave us a review. We really do appreciate it. We'll catch you next time. I'm Flora Lixman.