Water, Water, Everywhere: Juliana, Public Trust, and the Environment

By January 5, 2018 March 10th, 2020 News

Michigan is a unique place. It is housed within the Great Lakes Basin, which contains nearly one-fifth of the world’s freshwater supply.[1] Michigan natives use the lakes resources for a variety of things ranging from walleye fishing to sand volleyball and swimming. As such, Michigan’s citizens oftentimes see themselves as stewards of the lakes and want to maintain the lakes’ integrity for future generations. Tangentially, climate change is a contentious subject in today’s political climate. Although there are a range of philosophies and arguments in political life, the legal field is adapting in response to the changing social attitudes on the subject. Michigan may be at the forefront of this stampede of new and unique litigation on environmental matters because of its position between the great lakes and its citizen’s ownership of the lands that the lakes touch.

There are few ways in which an individual citizen, or group of citizens, can sue on environmental matters. In Michigan, the riparian rights system tends to dominate the lawsuits filed. Riparianism is the legal structure that allows for standing [2] to sue if a person owns land directly adjacent to a body of water. To be clear, Riparianism covers riparians and littorals. A riparian is a person owning property adjacent to a moving body of water such as a river, while a littoral is a person owning property adjacent to a static body of water like a lake. The two can be used, and often are used, interchangeably. However, there is a concept that permeates legal issues dealing with the environment: The Public Trust Doctrine.

Speaking generally, the Public Trust Doctrine is the idea that the government is under an obligation to hold, protect, reserve, and regulate, certain natural assets that belong to all of its people, both now and in the future. This doctrine allows citizens to exercise rights against the government if shared natural resources are in danger.

Recently, litigation has sprung up concerning how the public trust can service future generations. In the case Juliana v. United States, the plaintiffs were a group of 21 children, ranging from ages 8-19. They had all suffered some damage resulting from an environmental aberration, like severe flooding outside of a floodplain. Dr. James Hanson, acting as the ‘guardian of future generations’, was also involved the suit.

The group sued the United States Government for violations of its obligation to hold certain natural resources in trust for its people and future generations. The harms alleged include, but are not limited to, the following: increases in asthma, threats to the viability of non-chemical farming, the inability to engage in outdoor activities, and the inability to maintain a non-chemical diet. The children argue that for more than 50 years the government has known that carbon dioxde, from burning fossil fuels, has and will continue to destabilize the climate system in ways that endanger future generations with irreversible damage.

Although some of these harms may seem more prevalent than others, imagine the impact of a major pollution event in the Great Lakes that had similar but wider impacts than the Flint Water Crisis. In this case, the legal action is based on the public trust doctrine. Which means standing may present itself as a persistent hurdle for the plaintiffs to overcome. Standing requires, generally, (1) injury in fact (2) causation (3) redressability.

The child plaintiffs will struggle to meet this burden on all three requirements. The traditional injury, based on case law, is usually imminent and concrete. In this case, there is more conjecture involved. Causation will be an issue because the plaintiffs have to tie climate change to the injury directly. Redressability may be the smallest legal hurdle but it will be a tall social hurdle. Regulation is likely what is sought, which may necessarily impinge upon economic performances. So far, the Juliana court has found that the plaintiff children have standing to sue and will continue to explore that question.

The lawsuit deals with the fundamental question of stewardship. Does the government have a constitutional responsibility to protect and leave a viable climate system for future generations? Michigan citizens have dealt with this question since its early statehood, and yet they still need to navigate this issue today. The evasive nature of what ‘should be’ in environmental law may elude government regulation for now, but the line of cases similar to Juliana brings these issues to the direct attention to the court and government alike.

If you have questions about your riparian property rights, the public trust doctrine, Environmental Law, or legal standing, call us at Hewson & Van Hellemont to discuss your options.

[1] Mark Sproule-Jones, Restoration of the Great Lakes: Promises, Practices, Performances, 3 (2002).

[2] For an in-depth discussion of standing as it relates to Riparianism and the Public Trust see Austin W. Probst, GO WITH THE FLOW: THE PUBLIC TRUST DOCTRINE AND STANDING, 62 Wayne L Rev 535  (2017).

Austin Probst

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