Noah Hall - Green Bay Waterfront

Supreme Court rejects state’s claim of ownership of groundwater, extends equitable apportionment doctrine to disputed Memphis aquifer

On: November 23, 2021

In: Canada and Transboundary Waters, Public Trust, Water Law Reform

In an unanimous opinion by Chief Justice Roberts, the U.S. Supreme Court has rejected Mississippi’s claims of state ownership of groundwater within its territorial boundaries. The Court instead, as a matter of first impression, extended the equitable apportionment doctrine for flowing waters and resources to the disputed Memphis aquifer.

Over two decades of litigation in federal courts, Mississippi has pressed its claim of sovereign ownership of groundwater in the aquifer within its state boundaries. Based on its claim of state “ownership,” Mississippi has sought hundreds of millions of dollars for the alleged unlawful conversion of its groundwater by neighboring Tennessee. This claim of ownership is at odds with a line of Supreme Court doctrines, starting with equitable apportionment, as Chief Justice Roberts writes for the Court (slip. op., at 9-10):

Mississippi contends that it has sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply. We see things differently. It is certainly true that “each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” Kansas v. Colorado, 206 U. S. 46, 93 (1907). But such jurisdiction does not confer unfettered “ownership or control” of flowing interstate waters themselves. Wyoming v. Colorado, 259 U. S. 419, 464 (1922). Thus, we have “consistently denied” the proposition that a State may exercise exclusive ownership or control of interstate “waters flowing within her boundaries.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102 (1938). Although our past cases have generally concerned streams and rivers, we see no basis for a different result in the context of the Middle Claiborne Aquifer…. Mississippi’s ownership approach would allow an upstream State to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.

Thus the Chief Justice succinctly ended the Court’s discussion of the issue and Mississippi’s nearly two-decade legal quest for ownership of groundwater within its territory as property. It is a resounding win for neighboring Tennessee, Memphis, and the Memphis Light, Gas and Water Division, vindicating their long-standing legal position that the dispute must be plead as a request for equitable apportionment before arguing the merits of their water use and impacts.

How might the opinion in Mississippi v. Tennessee shape water law? The Court is explicit that it is deciding as a matter of first impression “whether equitable apportionment applies to interstate aquifers.” (slip op., at 7.). While the Chief Justice attempts to narrow the discussion to the Middle Claiborne Aquifer at issue in this dispute, the Court’s equitable apportionment holding would apply to (1) any interstate resource with (2) a measurable flow that (3) allows one state to interfere with the resource without trespassing into another state’s territory.

Mississippi v. Tennessee thus makes clear that states do not own the groundwater within their territory, and that interstate disputes over groundwater are subject to the Court’s equitable apportionment doctrine and procedures. However, the case makes no mention of the legal basis for denying state ownership and the long-standing alternative to state ownership of waters – the public trust doctrine. The Court’s silence on this background principle is striking, especially as public trust advocates are pushing to clarify and expand the doctrine in federal courts.

In my view, the Court’s holding on the equitable apportionment doctrine is logical and sound but could have gone further. I filed an amicus brief with a small crew of water law professors (Joe Regalia, Robert Abrams, Burke Griggs, and Jesse Richardson) to share with the Court the doctrines and implications beyond equitable apportionment in considering claims of state ownership of water as property. Beginning with a law review article in 2013 (Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management, with Benjamin L. Cavataro, 2013 Utah L. Rev. 1553) and again in 2016 (Interstate Groundwater Law Revisited: Mississippi v. Tennessee, with Joseph Regalia, 34 Virginia Environmental L. J. 1520), I have advanced and detailed how equitable apportionment should and can apply to groundwater. The more difficult question is what then explains the state’s relationship to waters within its territory, if not ownership? Joe Regalia and I explored this question, with implications for public water rights and protections, in our most recent article Waters of the State (59 Nat. Res. J. 59 2019). In short, it comes back to the public trust doctrine. And with a succinct opinion in Mississippi v. Tennessee, fundamental questions about the scope and power of the public trust doctrine for our waters remain unanswered.

Original Article

Great Lakes Law

https://www.greatlakeslaw.org/blog/2021/11/supreme-court-rejects-states-claim-of-ownership-of-groundwater-extends-equitable-apportionment-doctr.html

Noah Hall

Supreme Court upholds Clean Water Act regulation of pollution to groundwater but leaves lower courts and the EPA to sort it out

On: July 18, 2020

In: Clean Water Act and Water Quality

The following guest post is by Martha Hannah, a professional engineer entering her second year at Wayne Law. Prior to law school, Martha worked for fifteen years as an environmental engineer, managing environmental compliance, remediation, and due diligence work for industrial and municipal customers, including state and federal government agencies. Martha graduated magna cum laude from the University of Michigan’s College of Engineering, with a BS in Civil and Environmental Engineering. She shares her analysis and perspective on the Supreme Court’s recent decision in County of Maui v. Hawai’i Wildlife Fund and the newly announced rule for regulating groundwater pollution under the Clean Water Act.

The Clean Water Act’s core edict is deceptively simple: unpermitted discharges of pollutants from a point source to navigable waters are prohibited. Since its inception in 1972, however, this prohibition has proven persistently nebulous. When tasked with staking out the parameters of this decree, the EPA has wavered, judicial interpretations have varied, and overarching questions have gone unanswered more often than not.

One of the most disputed of these questions has been whether the CWA requires a permit when a point source discharges to tributary groundwater, as it relates to the eventual addition of pollutants to hydrologically-connected surface water. In April, the law took a preliminary step toward clarity when the Supreme Court handed down a decision in County of Maui v. Hawai’i Wildlife Fund, 140 S.Ct. 1462 (2020). Simultaneously answering one question and leaving many others open, the Supreme Court stated that discharges of pollutants to navigable waters via groundwater are subject to CWA permitting requirements… some of the time. The language that the Court used in creating its standard, and that which it avoided using, says a lot about the intersection between environmental science and environmental law and maps out the variables that will play a role in future CWA litigation and, by extension, the well-being of our nation’s waters.

The dispute behind this case is straightforward. The County of Maui in Hawai’i operates a wastewater facility that collects sewage and, after partial treatment, injects its effluent into wells located approximately a half-mile from the ocean. Environmental groups brought a citizens’ suit against the County, characterizing this discharge as an addition of a pollutant to navigable waters, and thus arguing that the CWA requires a permit for it.

At trial, the plaintiffs presented a hydrological study of the discharges, showing a direct link between the injection locations and groundwater flows into the Pacific Ocean. Finding this evidence convincing, the district court granted summary judgment for the environmental groups, writing that, because the “path to the ocean is clearly ascertainable,” the discharge into the wells was “functionally one into navigable water.” 24 F.Supp.3d 980, 998 (Haw. 2014). On appeal, the Ninth Circuit affirmed but utilized different language to describe its standard, stating that a permit is required under the CWA when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” 886 F.3d 737, 749 (2018) (emphasis added).

The Supreme Court granted certiorari “[i]n light of the differences in the standards adopted by the different Courts of Appeals . . . . Compare, e.g., 886 F.3d at 749 (“fairly traceable”), with Upstate Forever v. Kinder Morgan Energy Partners, L. P., 887 F.3d 637, 651 (C.A.4 2018) (“direct hydrological connection”), and Kentucky Waterways Alliance v. Kentucky Util. Co., 905 F.3d 925, 932–938 (C.A.6 2018) (discharges through groundwater are excluded from the Act's permitting requirements).” 140 S.Ct. at 1469-70.

In April 2019, a little over a year after the Ninth Circuit decision and five months ahead of the arguments before the Supreme Court, the Trump administration made a quick move to limit the reach of the CWA. The EPA issued an Interpretative Statement declaring releases of pollutants to groundwater categorically excluded from the Act’s permitting requirements. See https://www.epa.gov/npdes/releases-point-source-groundwater. This Statement set the groundwork for arguments in which the County of Maui could turn to the EPA’s current stance for support, and the environmental groups needed to argue against the current written policy and look to a past record of spotty EPA support for permit requirements for some groundwater discharges.

In the Maui opinion, the Supreme Court begins its analysis by turning to the dictionary and considering the meaning of the apparently perplexing word “from.” In the context of the CWA, does “from” indicate a bright-line test where only discharges directly from a point source to navigable water require a permit, or does it mean something broader? The Court concluded it is the latter by finding the Trump Administration EPA Interpretative Statement, which rules out NPDES permit requirements when any groundwater transport is involved, seriously inconsistent with the text of the statute:

EPA's new interpretation is [] difficult to reconcile with the statute's reference to “any addition” of a pollutant to navigable waters. It is difficult to reconcile EPA's interpretation with the statute's inclusion of “wells” in the definition of “point source,” for wells most ordinarily would discharge pollutants through groundwater. And it is difficult to reconcile EPA’s interpretation with the statutory provisions that allow EPA to delegate its permitting authority to a State only if the State . . . provides “ ‘adequate authority’ ” to “ ‘control the disposal of pollutants into wells.’ ” Id. at 1474-75 (citations omitted).

Ultimately, the Court rejected the strict “directly from” interpretation championed by the County of Maui and the Trump Administration EPA Interpretive Statement, saying this reading would provide an easy path by which polluters could circumvent the intentions of the CWA, and is thus unreasonable. Justice Breyer, delivering the opinion for the 6-3 majority (Roberts, Ginsburg, Sotomayor, Kagan, and Kavanaugh), wrote, “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.” 140 S.Ct. at 1473.

The Court then proceeds in its analysis by conceding that once it eliminated the strict rule which would categorically exclude all discharges to groundwater from CWA jurisdiction, a range of possible standards remained. This, perhaps, is where the opinion gets most interesting. Just what does the Supreme Court think is the difference between “direct hydrological connection,” “fairly traceable,” “functionally equivalent” or any other standard that has been formulated, and what are the implications of its reasoning?

To begin, the Court finds the “apparent breadth of the Ninth Circuit’s “fairly traceable” approach [] inconsistent with the context” of practicality, the statute’s preservation of regulation of nonpoint source pollution for the States and “longstanding regulatory practice” Id. at 1472-73. Throughout the opinion the Court expresses an unease concerning the reach of the Ninth Circuit’s standard. Breyer writes:

Virtually all water, polluted or not, eventually makes its way to navigable water. . . . Given the power of modern science, the Ninth Circuit's limitation, “fairly traceable,” may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms. Id. at 1470.

In setting its own standard, the Court reasons that its target should be “a middle ground between [the] extremes” offered by the Interpretive Statement and the Ninth Circuit. Id. at 1476. In the end, the Court holds “that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” Id. Even as it creates it, the Court acknowledges that its standard is as clear as mud, and provides a non-exhaustive list of potential factors for consideration in a determination of permit applicability to either illustrate this, provide guidance, or quite possibly, both:

The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances. But there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language. Consider, for example, just some of the factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. Id. at 1476-77.

The court also provides a near-end goalpost for the application of the CWA to discharges to groundwater, stating that “[w]here a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater . . . , the permitting requirement clearly applies.” Id. at 1476. However, at the far-end, the Court declines to implant the goalpost, instead leaving it hovering in a general area by stating that “permitting requirements likely do not apply” in a hypothetical situation where “the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later.” Id.

The Court leaves the task of further refinement of its “functionally equivalent” standard to the common-law method and the EPA (including via the administration of general permits). The Court also specifically puts faith in the discretion of district court judges in the setting of appropriate CWA penalties, trusting in their ability to take into account “the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.” Id. at 1477.

Because the Court rejected the Ninth Circuit standard, it remanded the case for further proceedings consistent with its standard, which in this case, seems likely to still result in a permit requirement for the County of Maui’s discharge.

Leaving its standard fuzzy and shying away from what the Court sees as an extreme set by the Ninth Circuit, the Supreme Court leaves many interpretive questions unanswered. The shortcomings to this method are obvious. In his dissent Justice Thomas, joined by Gorsuch, correctly points out that “[the Court] ultimately does little to explain how functionally equivalent an indirect discharge must be to require a permit,” leaving the interpretation in the hands of an EPA that has waffled on the issue to such a degree that its most recent interpretation was a complete about-face. Id. at 1481.

And what, exactly, is gained by the majority taking what it sees as a “middle road” by setting its “functionally equivalent” standard? Recall, the Ninth Circuit’s “extreme” standard was that a permit is required under the CWA when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” 886 F.3d 737, 749 (2018) (emphasis added). In rejecting this standard, the Supreme Court is ignoring the definition of “fairly traceable” that is provided within the standard itself, which equates the Ninth Circuit’s formulation to its own. The Supreme Court discards the phrase “fairly traceable” altogether, as if those words themselves are highly objectionable.

The Supreme Court’s refusal to include the concept of traceability in its standard may reflect a general unease about fully incorporating science in the interpretation of law, which is a tendency particularly puzzling and disconcerting in a case where the science is so central to the effective execution of the law’s purpose. A standard based on traceability readily incorporates advances in the reach of hydrological science, however, in distancing its holding from that word, the Supreme Court may be freezing the law’s acceptance of the associated science at some unspecified pre-2020 level.

Justice Breyer writes in the opinion that “context imposes natural limits as to when a point can properly be considered the origin of pollution that travels through groundwater.” 140 S.Ct. at 1476. In his dissent, Justice Alito points out an absurdity with this formulation:

Under the Court's interpretation, it appears that a pollutant that leaves a point source and heads toward navigable waters via some non-point source (such as by flowing over the ground or by means of groundwater) is “from” the point source for some portion of its journey, but once it has travelled a certain distance or once a certain amount of time has elapsed, it is no longer “from” the point source and is instead “from” a non-point source. Id. at 1485.

The majority’s “natural limits” seem to be in fact undiscernible, primarily because of the Court’s reluctance to accept a traceability standard.

Though the moving target which motivates science can be a troubling prospect to those who make, enforce and interpret the law, fully incorporating scientific advances into the interpretation of the CWA is the only way to fully carry out its lofty objective: “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” Clean Water Act § 101(a), 33 U.S.C. § 1251(a). The majority writes of “Congress' basic aim to provide federal regulation of identifiable sources of pollutants entering navigable waters” but fails to define “identifiable sources” in any way that would dispute the obvious definition: sources that are scientifically traceable. Id. at 1476. This interpretation, which clearly sets the burden of proof at convincing scientific traceability in lieu of fuzzy factors, was declined by the Court in the Maui opinion. The rejection of “traceability” represents a missed opportunity to both best carry out the Act’s objective and “provide[] a measure of fair notice and promote[] good-faith compliance,” as Justice Alito’s dissent observed was a deficiency of the majority’s standard. Id. at 1489.

In putting an end to any Clean Water Act interpretation that included strict exclusions of discharges to groundwater from permitting requirements, the Maui decision is a major victory for those who advocate for the protection of the environment. However, in its rejection of a standard based on traceability, the Court declined the opportunity to link the application of the CWA directly to the governing science. This move leaves unanswered many additional questions concerning the CWA’s scope; questions which will continue to be the subject of litigation as scientific understanding of pollutants and their transport progress.

Original Article

Great Lakes Law

https://www.greatlakeslaw.org/blog/2020/07/supreme-court-upholds-clean-water-act-regulation-of-pollution-to-groundwater-but-leaves-many-questions-for-lower-courts-and.html

Noah Hall

The Dulcepamba River gets its day in court – rights of nature and Constitutional law in Ecuador

On: June 10, 2019

In: Environmental Justice, Environmental Rights, Students

The following guest post is by Great Lakes Environmental Law Center student fellow Shannon Nelson. Shannon is a University of Michigan Law School student and graduate of Wesleyan University. Prior to law school, she was the operations manager for Floating Doctors in Bocas del Toro, Panama. Shannon has led our project in Ecuador, working with local advocates and attorneys to protect the Dulcepamba River and support the people most affected by its destruction.

In 2008, Ecuador became the first nation to recognize rights of nature in its Constitution. And in the coming months, Ecuador’s Constitutional Court will for the first time decide how rights of nature should be applied to protect the Dulcepamba River from state-sanctioned damming and destruction.

As Ecuador is a civil law country, judicial decisions affect only the parties at bar and, even at the appellate level, do not carry the precedential weight of cases in common law systems. The Constitutional Court is the one exception to this rule. The Court, which sits in Quito, is the singular body tasked with Constitutional interpretation in Ecuador. The Court may hear as a court of appeal cases that present novel questions of Constitutional law or where Constitutional mechanisms have been denied.

Although the Court has heard cases involving the rights of Nature before now, the Dulcepamba River case represents the first time the Court will interpret the rights of Nature recognized in the Constitution and begin to define the substance of those rights for the country.

For over a decade, the community of San Pablo de Amalí in the Bolívar province of Ecuador has been engaged in seemingly endless litigation with Hidrotambo, S.A. over their hydroelectric project on the Dulcepamba River. In 2003, the company applied for a license to utilize the river to generate power to serve the Ecuadorian grid. The national water authority (“SENAGUA”), in turn, granted them a water right for 6.5 cubic meters of water year-round.

In 2005, Hidrotambo began construction on the 8MW run-of-river style dam despite persistent objections from community. To build the intake works for the dam, the company determined that they would need to reroute the river channel about 200 meters closer to the town. Community members warned that rerouting the river so close to the town would pose a significant risk of flooding; however, their concerns were dismissed, and construction continued. The fears of the community played out in March 2015, when a totally normal weather event resulted in a devastating flood that killed three people and washed away several homes. In the years since, the community has been fighting for the enforcement of human and nature’s rights in the face of corporate power with close ties to the central government.

For a more in-depth account, see San Pablo de Amalí: un pueblo sin agua (Spanish) and Run of the River by Kat Kerlin (English).

Ecuador has led the world by recognizing Nature as a rights-bearing entity in its Constitution. This acknowledgment of legal personhood grants Nature standing to bring cases—or, more accurately, for others to bring cases on its behalf—against violations of its rights in court. Among the rights enumerated in Ecuador’s Constitution are the right to integral respect for [Nature’s] existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes and the right to be restored.

The Constitution also imposes obligations on the State to apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems, or the permanent alteration of natural cycles. These rights and obligations are distinct from, yet intrinsically connected with, several anthropocentric environmental rights recognized in the constitution, including the right to live in a healthy environment, the right to water, and the right to food sovereignty. The constitution also provides that, while the State will encourage sustainable development, when development conflicts with the rights of others to water and food sovereignty, those basic needs must come first. Taken in tandem, these rights and obligations create an expansive framework of environmental and social protections, consistent with the foundational principle that humans are part of the natural world and should strive to live in harmony with nature. Ecuador’s Constitution refers to this as the sumak kawsay, or good living, an indigenous principle, similar counterparts of which exist in other Indigenous nations throughout the region.

I began working on the Dulcepamba River case in October 2018, just over a month into my first semester of law school. I could not have imagined at that time the profound impact the case would have on me and my nascent legal career. Apart from a love of the outdoors and a penchant for rock walls, my only environmental training was an AP Environmental Science class in high school (which was longer ago than one might think looking at me). Having worked as Operations Manager for a global health NGO that provides primary care services for indigenous communities in Panama before coming to law school, I initially got involved with the project because of the indigenous rights issue it presented. Many of the communities in the Dulcepamba Watershed identify as indigenous and the hydroelectric company failed to consult the communities prior to beginning the project as required by both international and Ecuadorian law.

Our work, however, focused on four other provisions in Ecuador’s Constitution: the human rights to water, food sovereignty, and a healthy environment and, most centrally to this case, the rights of nature (“RoN”). When I began working on the case in October, I was as perplexed by the idea of Nature having rights as anyone. I struggled envisioning what such a legal system would look like. The more I immersed myself in the subject, however, the more evident the need for RoN became.

In December, Professor Hall and I traveled to Ecuador to visit the team in San Pablo de Amalí and to see the actual site of the dam. I learned just as much swimming in the Dulcepamba River and sitting in community members’ homes listening to their stories as I did pouring over law review articles, UNGA resolutions, and constitutional provisions. The interdependence between the community and the river illustrated just how important RoN is as an ideology and legal theory—it is impossible to truly protect one without the other.

The Dulcepamba River Litigation-

We have written amicus briefs for two cases being brought by members of the community of San Pablo de Amalí, on their own behalf and on behalf of Nature. The first case addresses the exorbitant water use authorization granted to Hidrotambo. Simply put, the current authorization amounts to a total wipeout of the Dulcepamba River. In 2018, over 291 applications for water use (some representing dozens of individuals) by the upstream community have been denied or held pending by SENAGUA due to the current concession to Hidrotambo. Community members have requested an exhaustive revision of Hidrotambo's water right, citing irregularities in the authorization process, including the failure to complete empirical studies before granting the concession. A study conducted by researchers at UC Davis Center for Watershed Sciences and presented by the plaintiffs demonstrates that the water right allocated to Hidrotambo exceeded the actual flow of the river 83% of the time over the last ten years. That is before factoring in any of the water needs of community members in the watershed. This case is still pending despite prior assurances from SENAGUA that it would be resolved by the end of 2018. We expect to file our amicus brief in the administrative case in the coming month.

The second case, a protective action brought the Public Ombudsman and the Ecumenical Human Rights Commission (CEDHU) against several Ecuadorian government agencies for failing to protect the constitutional rights of the community of San Pablo de Amalí and Nature, has progressed much more rapidly through the courts.

The protective action, which was filed in January 2019, addresses the negligent manner in which the hydroelectric project has been executed, from the initial planning to regulation of operations. Most notably, when the company rerouted the river channel closer to the town during construction, they failed to complete any hydrological or hydraulic studies and restricted the floodplain in such a way that the river was unable to evacuate sediment and debris. This resulted in the devastating flood in March 2015 that killed three people and completely washed away several houses. Beyond the incalculable harm suffered by the community, in constructing the dam, Hidrotambo completely altered the ecosystem of the river in violation of Article 71 of Ecuador’s Constitution. (See full text of Brief of Amicus Curiae in Support of the Protective Action, available at - https://www.greatlakeslaw.org/files/Dulcepamba_protective_action_amicus.pdf)

Hidrotambo has maintained that the flood was a natural event that their management of the dam played no role in; however, the UC Davis study revealed that the return interval for a weather event like the one that resulted in the March 2015 flood is only six years. This supports the community's assertion that the flood was not a freak natural disaster and would not have been nearly as destructive but for the rerouting of the river and the negligent maintenance of the dam. It also means that the community remains in danger as long as Hidrotambo refuses to take the necessary steps to mitigate the risks.

In February, a lower court in Chillanes, Ecuador held that there was not a demonstrable causal relationship between the actions of Hidrotambo and the various government agencies and the devastating flood, and as such there was no violation of constitutional rights. (See full text of decision from the Court of First Instance in Chillanes, available at - https://www.greatlakeslaw.org/files/Dulcepamba_Chillanes_decision.pdf)

On appeal, the Provincial Court of Bolívar also denied relief, affirming the lower court’s holding that there was no violation of constitutional rights and also advancing an administrative exhaustion argument. According to the court, the record demonstrates that the agencies named as defendants have requested that Hidrotambo implement protective measures. While recognizing that none of these demands have been complied with, the court nevertheless held that a protective action is not the right method to compel the agencies to enforce compliance. (See full text of appellate decision from the Provincial Court of Bolívar, available at - https://www.greatlakeslaw.org/files/Dulcepamba_Bolivar_decision.pdf)

The Constitutional Court’s acceptance of the case indicates that the Provincial Court’s administrative exhaustion argument may not be sound. Even at this procedural stage, it represents an important step in RoN jurisprudence. The Court was not compelled to accept the case—it has broad discretionary authority over its docket. The decision to review the case suggests that the Court is prepared to begin developing a substantive RoN as a matter of Constitutional law. In the decision announcing its acceptance of the case, the Court said that it would address the standards and limits regarding the exploitation of renewable and nonrenewable resources managed by the State, the conduct of licensed companies, and the impact on the rights of the community and of Nature. The Constitutional Court’s decision in Dulcepamba River case could then frame the issues and standards for future RoN cases from the Galapagos to the Amazon.

An alliance of environmental organizations (including the Earth Law Center, International Rivers, CEDENMA, and the Great Lakes Environmental Law Center) along with several leading international experts in environmental law (including Professors Oliver Houck, Zygmunt Plater, Patrícia Galvão Ferreira, and Noah Hall) filed an amicus brief in the Constitutional Court on the Dulcepamba River case. An English translation of the Constitutional Court amicus brief is also available.

Why we need Rights of Nature (and why simply recognizing a human right to a healthy environment won’t cut it)-

When I began my studies in September, I did not plan on becoming an environmental lawyer. After spending the last several months supporting those fighting on behalf of the Dulcepamba River, I cannot imagine not being one. I have to believe that it is possible to solve the environmental problems we have created. However, it is clear that our current system will not provide the answer. The Community Environmental Legal Defense Fund has keenly observed that one should not expect more from a permitting system; by its very name, it is clear that such a system is designed to permit harm, not prohibit it.

Over the years, many have pressed to formally recognize a human right a healthy environment. While I am certainly supportive of such an action, I do not believe it goes nearly far enough. More than 100 countries already recognize a human right to a healthy environment and yet we are still faced with mounting environmental crises of epic proportions. According to the latest IPCC report released in October 2018, we are poised to exceed 1.5 degrees above preindustrial levels by 2040. While we cannot yet fully appreciate the effects this increase will have on the planet, the prognosis is certainly bleak. Earlier this month, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services released a global assessment on Biodiversity finding that nearly 1 million species are at risk of extinction, many within mere decades. Radical situations call for radical solutions.

Of course, in order to solve the problem, we need to know what is causing it. David Boyd, the UN Special Rapporteur on Human Rights and the Environment, has identified three damaging ideas that have led to our current environmental crisis:

The first is anthropocentrism—the widespread human belief that we are separate from, and superior to, the rest of the natural world… The second is that everything in nature, animate and inanimate, constitutes our property, which we have the right to use as we see fit. The third idea is that we can and should pursue limitless economic growth as the paramount objective of modern society.

If we are to address the environmental harms we have caused and make meaningful change, we first need a change of perspective. The defining characteristic of RoN, of course, is the shift from the anthropocentric ideology that has enabled us to treat the natural world as property to be extracted and exploited, toward a recognition that as humans we are very much a part of the natural world.

For further discussion of the need for RoN check out this podcast from CELDF or Fighting for Our Shared Future by Earth Law Center.

While RoN is still on the outskirts of the mainstream environmental movement, it is gaining momentum internationally and at the grassroots level. Bolivia, New Zealand, India, and Colombia have all recognized RoN in national laws and court decisions. We have seen pockets of RoN spring up throughout the United States with varying degrees of success. Over three dozen communities across the United States have already passed local laws and ordinances recognizing RoN. There also are campaigns underway to amend state constitutions in Colorado, Ohio, Oregon, New Hampshire and Vermont. To that effect, perhaps most promising in all of this, are the individuals and communities coming together to demand and defend Nature’s rights. It is worth remembering that RoN did not always exist in Ecuador. In fact, Ecuador faced many of the same obstacles in recognizing RoN that we might anticipate here in the United States. Ecuador’s economy was largely dependent on the extraction and exploitation of natural resources and property law in the country was quite similar to ours. It took a massive social movement, led by Indigenous groups and environmental advocates, to include RoN in the 2008 Constitution. Over the past 9 months, I have also gotten to work alongside and learn from skillful and fierce advocates both in Ecuador and across the United States and Canada, from the community members of San Pablo de Amalí and their attorneys at CEDHU, to the growing network of professors and students across the United States and Canada committed to advancing the rights of Nature and communities. Although there is still a long way to go and the stakes have never been higher, I am hopeful that RoN may actually save the world.

Photos: 1) Don Manuel Truijillo, president of the farming community of San Pablo de Amalí, sits with his daughter by the Dulcepamba River; 2) SENAGUA offices in Quito; 3) the Hidrotambo dam; 4) Don Manuel, accompanied by a project team member, standing on the dam spillway with his threatened home in the background.

Original Article

Great Lakes Law

http://feedproxy.google.com/~r/GreatLakesLaw/~3/wYKWnY8s7NU/the-dulcepamba-river-gets-its-day-in-court-rights-of-nature-and-constitutional-law-in-ecuador.html

Noah Hall

Voters Approve Lake Erie Bill of Rights, Polluters Challenge it in Court

On: February 27, 2019

In: Canada and Transboundary Waters, Environmental Justice, Environmental Rights, Politics, Public Trust, Water Law Reform

On February 26, 2019, voters in Toledo, Ohio overwhelmingly passed the Lake Erie Bill of Rights, fully stated-

ESTABLISHING A BILL OF RIGHTS FOR LAKE ERIE, WHICH PROHIBITS ACTIVITIES AND PROJECTS THAT WOULD VIOLATE THE BILL OF RIGHTS

We the people of the City of Toledo declare that Lake Erie and the Lake Erie watershed comprise an ecosystem upon which millions of people and countless species depend for health, drinking water and survival. We further declare that this ecosystem, which has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention. Continued abuse consisting of direct dumping of industrial wastes, runoff of noxious substances from large scale agricultural practices, including factory hog and chicken farms, combined with the effects of global climate change, constitute an immediate emergency.

We the people of the City of Toledo find that this emergency requires shifting public governance from policies that urge voluntary action, or that merely regulate the amount of harm allowed by law over a given period of time, to adopting laws which prohibit activities that violate fundamental rights which, to date, have gone unprotected by government and suffered the indifference of state-chartered for-profit corporations.

We the people of the City of Toledo find that laws ostensibly enacted to protect us, and to foster our health, prosperity, and fundamental rights do neither; and that the very air, land, and water – on which our lives and happiness depend – are threatened. Thus it has become necessary that we reclaim, reaffirm, and assert our inherent and inalienable rights, and to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests, and our rights, are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.

We the people of the City of Toledo affirm Article 1, Section 1, of the Ohio State Constitution, which states: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

We the people of the City of Toledo affirm Article 1, Section 2, of the Ohio State Constitution, which states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”

And since all power of governance is inherent in the people, we, the people of the City of Toledo, declare and enact this Lake Erie Bill of Rights, which establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations.

Section 1 – Statements of Law – A Community Bill of Rights

(a) Rights of Lake Erie Ecosystem. Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve. The Lake Erie Ecosystem shall include all natural water features, communities of organisms, soil as well as terrestrial and aquatic sub ecosystems that are part of Lake Erie and its watershed.

(b) Right to a Clean and Healthy Environment. The people of the City of Toledo possess the right to a clean and healthy environment, which shall include the right to a clean and healthy Lake Erie and Lake Erie ecosystem.

(c) Right of Local Community Self-Government. The people of the City of Toledo possess both a collective and individual right to self-government in their local community, a right to a system of government that embodies that right, and the right to a system of government that protects and secures their human, civil, and collective rights.

(d) Rights as Self -Executing. All rights secured by this law are inherent, fundamental, and unalienable, and shall be self-executing and enforceable against both private and public actors. Further implementing legislation shall not be required for the City of Toledo, the residents of the City, or the ecosystems and natural communities protected by this law, to enforce all of the provisions of this law.

Section 2 – Statements of Law – Prohibitions Necessary to Secure the Bill of Rights

(a) It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law. “Corporation” shall include any business entity.

(b) No permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.

Section 3 – Enforcement

(a) Any corporation or government that violates any provision of this law shall be guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation. Each day or portion thereof, and violation of each section of this law, shall count as a separate violation.

(b) The City of Toledo, or any resident of the City, may enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas, General Division. In such an action, the City of Toledo or the resident shall be entitled to recover all costs of litigation, including, without limitation, witness and attorney fees.

(c) Governments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction, shall be strictly liable for all harms and rights violations resulting from those activities.

(d) The Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest. Damages shall be measured by the cost of restoring the Lake Erie Ecosystem and its constituent parts at least to their status immediately before the commencement of the acts resulting in injury, and shall be paid to the City of Toledo to be used exclusively for the full and complete restoration of the Lake Erie Ecosystem and its constituent parts to that status.

Section 4 – Enforcement – Corporate Powers

(a) Corporations that violate this law, or that seek to violate this law, shall not be deemed to be “persons” to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law, nor shall they possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or prohibitions enumerated by this law, including the power to assert state or federal preemptive laws in an attempt to overturn this law, or the power to assert that the people of the City of Toledo lack the authority to adopt this law.

(b) All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.

Section 5 – Effective Date and Existing Permit Holders

This law shall be effective immediately on the date of its enactment, at which point the law shall apply to any and all actions that would violate this law regardless of the date of any applicable local, state, or federal permit.

Section 6 – Severability

The provisions of this law are severable. If any court decides that any section, clause, sentence, part, or provision of this law is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the law. This law would have been enacted without the invalid sections.

Section 7 – Repealer

All inconsistent provisions of prior laws adopted by the City of Toledo are hereby repealed, but only to the extent necessary to remedy the inconsistency.

Update: The day after this historic vote, a lawsuit challenging the Lake Erie Bill of Rights was filed in federal court by a polluting farm (Drewes Farm v. City of Toledo). Some of the issues raised were previewed in an analysis released just before the election by the Ohio State University Extension's Farm Office.

Original Article

Great Lakes Law

http://feedproxy.google.com/~r/GreatLakesLaw/~3/Z_VD1Xc2Eng/lake-erie-bill-of-rights.html

Noah Hall

Federal appeals court allows Flint residents’ claims against state officials for violation of the constitutional right to bodily integrity

On: January 31, 2019

In: Environmental Justice, Environmental Rights, Flint Water Crisis

In a win for Flint residents and environmental justice, the federal Court of Appeals for the Sixth Circuit has ruled that the actions of government – notably MDEQ officials and state-appointed emergency managers – “shocked the conscience” and may violate citizens’ right to bodily integrity as guaranteed by the Due Process Clause of the Constitution’s Fourteenth Amendment. The court’s decision - Guertin v. Michigan, 912 F. 3d 907 (6th Cir. 2019) - reasons that water is not only a necessity for life but a public good, and citizens rely on their government to provide water in good faith. Government officials knowingly delivered unsafe water to residents in Flint for over a year, denying mounting evidence of the danger, and misleading the public and federal officials. While the court cautioned that it was not creating a new constitutional right to water service or a completely pollution-free environment, it establishes a precedent to hold government officials accountable for subjecting citizens to unwarranted dangerous pollution based on violating their right to bodily integrity. The court concluded:

In providing a tainted life-necessity and falsely assuring the public about its potability, government officials stripped the very essence of personhood from those who consumed the water. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the affront to human dignity in this case is compelling, and defendants’ conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe their conduct is constitutionally permissible under the Due Process Clause. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct.

Below is an edited excerpt, with most citations and quotations omitted for ease of reading (and the full opinion with dissent here).

Guertin v. Michigan, 912 F. 3d 907 (6th Cir. 2019)

Griffin, Circuit Judge

This case arises out of the infamous government-created environmental disaster commonly known as the Flint Water Crisis. As a cost-saving measure until a new water authority was to become operational, public officials switched the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant. With the approval of State of Michigan regulators and a professional engineering firm, on April 25, 2014, the City began dispensing drinking water to its customers without adding chemicals to counter the river water’s known corrosivity.

The harmful effects were as swift as they were severe. Within days, residents complained of foul smelling and tasting water. Within weeks, some residents’ hair began to fall out and their skin developed rashes. And within a year, there were positive tests for E. coli, a spike in deaths from Legionnaires’ disease, and reports of dangerously high blood-lead levels in Flint children. All of this resulted because the river water was 19 times more corrosive than the water pumped from Lake Huron by the DWSD, and because, without corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint’s residents. The crisis was predictable, and preventable. See generally Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383, 387 (6th Cir. 2016).

Plaintiffs Shari Guertin, her minor child E.B., and Diogenes Muse-Cleveland claim personal injuries and damages from drinking and bathing in the lead-contaminated water. *** The plaintiffs’ remaining claim is that defendants violated their right to bodily integrity as guaranteed by the Substantive Due Process Clause of the Fourteenth Amendment. They bring this claim pursuant to 42 U.S.C. § 1983, under which an individual may bring a private cause of action against anyone who, under color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution or conferred by federal statute.

II.

On this appeal, we decide [a] substantial issue of public importance: did plaintiffs plead a plausible Fourteenth Amendment Due Process violation of their right to bodily integrity and was such a constitutional right clearly established when the defendants acted? We join the Michigan Court of Appeals, Mays v. Snyder, 916 N.W.2d 227 (Mich. Ct. App. 2018) [and citing numerous other lower federal and state courts] in holding that plaintiffs have pled a plausible Due Process violation of bodily integrity regarding some of the defendants.

***

IV.

[The government defendants sought to dismiss the plaintiffs’ claims based on the doctrine of qualified immunity.] Qualified immunity shields public officials from undue interference with their duties and from potentially disabling threats of liability. This immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions, protecting all but the plainly incompetent or those who knowingly violate the law. A plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. To do so, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 563 U.S. 731 (2011).

The Fourteenth Amendment of the United States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Flowing directly from the protections enshrined in the Magna Carta, the Due Process Clause significantly restricts government action—its core is “preventing government from abusing its power, or employing it as an instrument of oppression.” Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992). Although the Due Process Clause provides no guarantee of certain minimal levels of safety and security, it expressly prohibits deprivations by the State itself. That is, “its purpose is to protect the people from the State, not to ensure that the State protects them from each other.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989).

There are procedural and substantive due process components. Only the latter component is at issue here. Substantive due process bars certain government actions regardless of the fairness of the procedures used to implement them. It “specifically protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). The liberty interests secured by the Due Process Clause include the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. These common-law privileges, the Supreme Court has held, specifically embrace the right to bodily integrity (see id), and the right not to be subjected to arbitrary and capricious government action that shocks the conscience and violates the decencies of civilized conduct.

***

Plaintiffs’ complaint deals with the scope of the right to bodily integrity, an indispensable right recognized at common law as the “right to be free from ... unjustified intrusions on personal security” and “encompassing” freedom from bodily restraint and punishment.” Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); see also Davis v. Hubbard, 506 F.Supp. 915, 930 (N.D. Ohio 1980) (“In the history of the common law, there is perhaps no right which is older than a person’s right to be free from unwarranted personal contact.”)

This common law right is first among equals. As the Supreme Court has said: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891). Absent lawful authority, invasion of one’s body “is an indignity, an assault, and a trespass” prohibited at common law. Id. On this basis, we have concluded the right to personal security and to bodily integrity bears an impressive constitutional pedigree.

This right is fundamental where the magnitude of the liberty deprivation that the abuse inflicts upon the victim strips the very essence of personhood. “We have never retreated from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected interests.” Missouri v. McNeely, 569 U.S. 141 (2013). And more broadly, it is beyond debate that an individual’s interest in preserving her life is one of constitutional dimension.

Bodily integrity cases usually arise in the context of government-imposed punishment or physical restraint, but that is far from a categorical rule. Instead, the central tenet of the Supreme Court’s vast bodily integrity jurisprudence is balancing an individual’s common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual’s body. Thus, to show that the government has violated one’s right to bodily integrity, a plaintiff need not establish any constitutional significance to the means by which the harm occurs. That is because individuals possess a constitutional right to be free from forcible intrusions on their bodies against their will, absent a compelling state interest.

***

This nonconsensual intrusion vis-à-vis government interest line of cases has played out time and time again in the lower courts. The numerous cases involving government experiments on unknowing and unwilling patients provide a strong analogy to the Flint Water Crisis. Involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection.

In re Cincinnati Radiation Litigation, 874 F.Supp. 796 (S.D. Ohio 1995), is a good example. Funded by the Department of Defense, government officials at the University of Cincinnati subjected cancer patients to radiation doses consistent with those expected to be inflicted upon military personnel during a nuclear war. The patients were in “reasonably good clinical condition,” and were “primarily indigent, poorly educated, and of lower than average intelligence.” At no time did the government actors disclose the risks associated with the massive radiation doses or obtain consent to irradiate the patients at those levels for those purposes—they instead told the patients that the radiation was treatment for their cancer. Summarizing the caselaw, the Cincinnati Radiation court easily concluded that “the right to be free of state-sponsored invasion of a person’s bodily integrity is protected by the Fourteenth Amendment guarantee of due process.” The involuntary and misleading nature of the intrusions was key. The patients could not “be said to exercise that degree of free will that is essential to the notion of voluntariness” because-

“the choice Plaintiffs would have been forced to make was one of life or death. If the Constitution protects personal autonomy in making certain types of important decisions, the decision whether to participate in the Human Radiation Experiments was one that each individual Plaintiff was entitled to make freely and with full knowledge of the purpose and attendant circumstances involved. Without actually seizing the Plaintiffs and forcing them to submit to these experiments, the agents of the state accomplished the same feat through canard and deception.”

We find the Cincinnati Radiation matter especially analogous. In both instances, individuals engaged in voluntary actions that they believed would sustain life, and instead received substances detrimental to their health. In both instances, government officials engaged in conduct designed to deceive the scope of the bodily invasion. And in both instances, grievous harm occurred. Based on the facts and principles set forth in the above cases, we therefore agree with the district court that a government actor violates individuals’ right to bodily integrity by knowingly and intentionally introducing life-threatening substances into individuals without their consent, especially when such substances have zero therapeutic benefit.

Finally, we note what plaintiffs’ claim does not entail. There is, of course, “‘no fundamental right to water service.’” In re City of Detroit, 841 F.3d 684 (6th Cir. 2016). Moreover, the Constitution does not guarantee a right to live in a contaminant-free, healthy environment. To this end, several defendants and the dissent cite a California state case involving residents complaining about a city fluoridating its drinking water supply. See Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005). However, Coshow is particularly inapposite because it shows the push-and-pulls of competing policy decisions that generally fall outside the scope of a violation of the right to bodily integrity—there, the government publicly introduced fluoride into the water system, a chemical frequently added to public water systems to prevent tooth decay. Here, defendants make no contention that causing lead to enter Flint’s drinking water was for the public good or that they provided notice to Flint residents about the lead-laced water. Therefore, “Coshow did not address whether substantive due-process protections might be implicated in the case of intentional introduction of known contaminants by governmental officials, and its reasoning is inapplicable here.” Mays v. Snyder, 916 N.W.2d at 262 n.16.

Upon a showing of a deprivation of a constitutionally protected liberty interest, a plaintiff must show how the government’s discretionary conduct that deprived that interest was constitutionally repugnant. We use the “shocks the conscience” rubric to evaluate intrusions into a person’s right to bodily integrity. Thus, a plaintiff must show as a predicate the deprivation of a liberty or property interest and conscience-shocking conduct.

“[T]he measure of what is conscience shocking is no calibrated yard stick,” nor is it “subject to mechanical application.” County of Sacramento v. Lewis, 523 U.S. 833 (1998). Several tropes help explain its meaning, with the focus again being on “executive abuse of power.” Due-process-violative conduct shocks the conscience, infringes upon the decencies of civilized conduct, is so brutal and so offensive to human dignity, and interferes with rights implicit in the concept of ordered liberty. These are subjective standards, to be sure, but they make clear that the ‘shocks the conscience’ standard is not a font of tort law, but is instead a way to conceptualize the sort of egregious behavior that rises to the level of a substantive due process violation. Stated differently, the shocks-the-conscience test is the way in which courts prevent transforming run-of-the-mill tort claims into violations of constitutional guarantees.

[The Supreme Court’s holding in County of Sacramento v. Lewis] highlighted how the time to deliberate in one circumstance may dictate liability in one situation but not another because as the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical. Take a classic deliberate indifference situation—when, for example, a prison official has time to make unhurried judgments, with the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. It is in these kinds of situations where we would expect plaintiffs asserting substantive due process claims based on deliberate indifference to be most successful.

The critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct. Time is … one element [in considering] the entirety of the situation— the type of harm, the level of risk of the harm occurring, and the time available to consider the risk of harm are all necessary factors in determining whether an official was deliberately indifferent. The key variable is whether actual deliberation is practical, not whether the claimant was in state custody. This is because custodial settings are not the only situations in which officials may have a reasonable opportunity to deliberate.

We have identified a multitude of considerations when evaluating an official’s alleged arbitrariness in the constitutional sense, including the time for deliberation, the nature of the relationship between the government and the plaintiff, and whether a legitimate government purpose motivated the official’s act. *** Simply making bad choices does not rise to the level of deliberate indifference. Rather, for or us to find deliberate indifference, . . . we must find not only that the governmental actor chose to act (or failed to act) despite a subjective awareness of substantial risk of serious injury, but we also must make some assessment that he did not act in furtherance of a countervailing governmental purpose that justified taking that risk. “Many, if not most, governmental policy choices come with risks attached to both of the competing options, and yet it is not a tort for government to govern by picking one option over another.” Schroeder v. City of Fort Thomas, 412 F.3d 724 (2005). Essentially, the more voluntary the plaintiff-government relationship, or the less time the state actor has to deliberate, or the greater the extent to which the state actor is pursuing a legitimate end, the less arbitrary we should deem a bodily injury or death caused by the state actor.We agree with the district court that these considerations weigh in favor of finding that the generally alleged conduct was so egregious that it can be said to be “arbitrary in the constitutional sense.”

Extensive time to deliberate. There is no doubt that the lead-contamination inflicted upon the people of Flint was a predictable harm striking at the core of plaintiffs’ bodily integrity, and this known risk cannot be excused on the basis of split-second decision making. All of the alleged decisions by defendants leading up to and during the crisis took place over a series of days, weeks, months, and years, and did not arise out of time-is-of-the-essence necessity. Their unhurried judgments were replete with opportunities for repeated reflection, largely uncomplicated by the pulls of competing obligations, and thus militate in plaintiffs’ favor. In the Court’s words, because “[w]hen such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Lewis, 523 U.S. at 853.

Involuntary relationship. In addition to the time to deliberate, the relationship between the City of Flint and its residents matters. At the outset, we acknowledge we deal here not with the typical line of voluntary/involuntary relationships that normally occur in our caselaw. Instead, two factors weigh toward an involuntary relationship. First, Flint’s transmission of drinking water to its residents is mandatory on both ends—Flint’s Charter and Code of Ordinances mandate that the city supply water to its residents, see, e.g., Flint City Charter § 4203(A), Flint Code of Ord. § 46-7, and as the City expressly argued below, “residents are legally required to take and pay for the water, unless they use an approved spring or well.” See Flint Code of Ord. §§ 46-50(b), 46-51, 46-52. Second, various defendants’ assurances of the water’s potability hid the risks, turning residents’ voluntary consumption of a substance vital to subsistence into an involuntary and unknowing act of self-contamination. As the district court aptly reasoned, “misleading Flint’s residents as to the water’s safety—so that they would continue to drink the water and Flint could continue to draw water from the Flint River—is no different than the forced, involuntary invasions of bodily integrity that the Supreme Court has deemed unconstitutional.”

No legitimate government purpose. The decision to temporarily switch Flint’s water source was an economic one and there is no doubt that reducing cost is a legitimate government purpose. When a government acts for the benefit of the public, normally its deliberate choice does not shock the conscience. There is a caveat to this general rule—acting merely upon a government interest does not remove an actor’s decision from the realm of unconstitutional arbitrariness. Here, jealously guarding the public’s purse cannot, under any circumstances, justify the yearlong contamination of an entire community. In the words of the Michigan Court of Appeals, “we can conceive of no legitimate governmental objective for this violation of plaintiffs’ bodily integrity.” Mays, 916 N.W.2d at 262.

There is no allegation defendants intended to harm Flint residents. Accordingly, the question is whether defendants acted with deliberate indifference in the constitutional sense, which we have equated with subjective recklessness. This is a particularly high hurdle, for plaintiffs must show the government officials knew of facts from which they could infer a ‘substantial risk of serious harm,’ that they did infer it, and that they acted with indifference ‘toward the individual’s rights. The deliberate-indifference standard requires an assessment of each defendant’s alleged actions individually. Our focus is on each individual defendant’s conduct, their “subjective awareness of substantial risk of serious injury,” and whether their actions were made “in furtherance of a countervailing governmental purpose that justified taking that risk.”

Flint defendants (Earley, Ambrose, and Croft). We begin with one of the two sets of defendants who were instrumental in creating the crisis—defendants Croft [Flint Department of Public Works director], Emergency Manager Earley, and Emergency Manager Ambrose [Emergency Managers appointed by the state to administer the city of Flint]. These individuals were among the chief architects of Flint’s decision to switch water sources and then use a plant they knew was not ready to safely process the water, especially in light of the Flint River’s known environmental issues and the problems associated with lead exposure. Earley, for example, “forced the transition through” despite knowing how important it was that “the treatment plant be ready to treat Flint River water” and that “the treatment plant was not ready.” Similarly, Croft permitted the water’s flow despite knowing “that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents.” The Flint defendants also made numerous statements to the public proclaiming that the water was safe to drink. Defendant Ambrose’s decisions to twice turn down opportunities to reconnect to the DWSD after he knew of the significant problems with the water were especially egregious. These and other asserted actions plausibly allege deliberate indifference and plain incompetence not warranting qualified immunity. To the extent these defendants claim “mistakes in judgment” because they reasonably relied upon the opinions of Michigan Department of Environmental Quality (MDEQ) employees and professional engineering firms, those are facts to be fleshed out during discovery and are not appropriate to resolve at the motion-to-dismiss posture. *** One can place a benign construction on the factual allegations and draw inferences so that the facts amount to a negligent mismanagement of priorities and risks; but the allegations also support a reasonable inference that Earley prioritized a drive to cut costs with deliberate and reckless indifference to the likely results, and Ambrose refused to reconnect to Detroit water despite knowing the substantial risk to Flint residents’ health.

For now, we conclude that plaintiffs’ complaint plausibly alleges a constitutional violation as to these defendants.

DEQ Defendants (Busch, Shekter-Smith, Prysby, Wurfel, and Wyant). The MDEQ defendants were the other set of individuals front and center during the crisis. The allegations against defendants Busch, Shekter-Smith, Prysby, and Wurfel are numerous and substantial. These MDEQ defendants played a pivotal role in authorizing Flint to use its ill-prepared water treatment plant to distribute drinking water from a river they knew was rife with public-health-compromising complications. Furthermore, when faced with the consequences of their actions, they falsely assured the public that the water was safe and attempted to refute assertions to the contrary. A few poignant examples further illustrate their culpability:

Less than two weeks before the switch to Flint water, the Flint water treatment plant’s water quality supervisor wrote to Prysby and Busch that he had inadequate staff and resources to properly monitor the water. As a result, he informed Prysby and Busch, “I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction.” Busch and Prysby did not act on this warning. Instead, a few days later, Busch drafted a talking point for a Flint community meeting that highlighted that MDEQ was “satisfied with the City’s ability to treat water from the Flint River.”
After General Motors very publicly stopped using Flint River water at its engine plant for fear of corrosion, Prysby made sure the department’s approach was to spin this symptom as not related to public health instead of investigating the underlying problem. He “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
On February 27, 2015, Busch lied when he told “the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program.” However, Busch knew “[b]y no later than April 2015, but likely much earlier . . . that no corrosion control was being used in Flint following the switch to the Flint River as the water source.”
In the midst of the crisis and with full knowledge that Flint’s water distribution system was corroded and presented significant health issues, Shekter-Smith callously excused Flint’s lack of drinking water compliance as “circumstances happen.” And after the EPA pressed MDEQ officials for MDEQ’s failure to optimize corrosion controls in July 2015, she requested the EPA nonetheless cover her department’s decision by “indicating in writing . . . its concurrence that the city is in compliance with the lead and copper rule….” Doing so, she wrote, “would help distinguish between [MDEQ’s] goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” In other words, “technical compliance” trumped addressing an urgent and catastrophic public health disaster.
On numerous occasions, defendant Wurfel, the public face of the crisis, announced the water was safe to drink, and demeaned, belittled, and aggressively dampened attempts by the scientific community to challenge the government’s assertions that Flint did not have a problem with its drinking water. And he suggested that concern regarding the water was at best a short-term problem—that by the time the City had completed its lead-testing, the City would already be drawing from a different water source altogether.
As with the Flint defendants, these MDEQ defendants created the Flint Water environmental disaster and then intentionally attempted to cover-up their grievous decision. Their actions shock our conscience. It is alleged that these defendants acted with deliberate indifference to the plaintiffs’ constitutional right to bodily integrity and at a minimum were plainly incompetent.

To the extent these defendants made “honest mistakes in judgment”—in law or fact—in interpreting and applying the Lead and Copper Rule, that defense is again best reserved for after discovery. This Rule generally requires public water systems to monitor lead and copper levels and to treat certain elevated levels in accordance with the regulation. 40 C.F.R. § 141.80 et. seq. More specifically, it requires a “large system,” like Flint, to optimize corrosion control treatment before distribution of water to the public. § 141.81(a)(1). However, MDEQ employees did not follow this dictate; instead, under a “flawed interpretation” of the Rule, they drew up a yearlong sampling program post-switch (broken up into two, six-month monitoring periods) to determine whether corrosion controls were required. In their view, this after-the-fact-wait-and-see approach to corrosion controls allegedly fell within minimum compliance levels of the Rule. Plaintiffs’ view is bleaker. They assert MDEQ viewed Flint residents as “guinea pigs” for a year to test lead-compliance theories that were unsupported and unauthorized by the EPA just to pass time until water began flowing from a new water authority. To be sure, plaintiffs’ view must be based on reasonable inferences from factual allegations. The district court correctly found that it is.

By the same token, we reject Wurfel’s reliance upon two Second Circuit cases involving statements by public officials about the air-quality in lower Manhattan in the days following the September 11 terrorist attacks, chiefly for the reason that those matters involved the balancing of competing governmental interests—restoring public services and protecting public health—during a time-sensitive environmental emergency. We have no such similar facts here on the face of plaintiffs’ complaint.

***

VI.

***

Given the unique circumstances of this case, defendants argue we should defer to the “breathing room” qualified immunity provides and hold that the invasion of plaintiffs’ right to bodily integrity via life-threatening substances with no therapeutic benefit introduced into individuals without their consent was not clearly established before the officials engaged in their respective conduct. The dissent likewise suggests that “plaintiffs must be able to ‘identify a case with a similar fact pattern’ to this one ‘that would have given ‘fair and clear warning to officers’ about what the law requires.’” But the Supreme Court has made clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. For the reasons that follow, we decline to erect the suggested “absolute barrier to recovering damages against an individual government actor.”

The lack of a comparable government-created public health disaster precedent does not grant defendants a qualified immunity shield. Rather, it showcases the grievousness of their alleged conduct: “The easiest cases don’t even arise,” United States v. Lanier, 520 U.S. 259 (1997); there is no need that the very action in question have previously been held unlawful because the unconstitutionality of outrageous conduct obviously will be unconstitutional and some personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion.

Knowing the Flint River water was unsafe for public use, distributing it without taking steps to counter its problems, and assuring the public in the meantime that it was safe is conduct that would alert a reasonable person to the likelihood of personal liability. As set forth above, taking affirmative steps to systematically contaminate a community through its public water supply with deliberate indifference is a government invasion of the highest magnitude. Any reasonable official should have known that doing so constitutes conscience-shocking conduct prohibited by the substantive due process clause. These actions violate the heartland of the constitutional guarantee to the right of bodily integrity, and the obvious cruelty inherent in defendants’ conduct should have been enough to forewarn defendants.

Furthermore, the long line of Supreme Court cases discussed above all build on each other from one foundation: an individual’s right to bodily integrity is sacred, founded upon informed consent, and may be invaded only upon a showing of a government interest. The Court could not have been clearer in Washington v. Harper, 494 U.S. 210 (1990) when it stated that “[t]he forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Here we have an even more dramatic invasion, for at least in Harper the state forced medication—something needed to improve or sustain life—into its citizens; here, government officials caused Flint residents to consume a toxin with no known benefit, did so without telling them, and made affirmative representations that the water was safe to drink.

***

In providing a tainted life-necessity and falsely assuring the public about its potability, government officials stripped the very essence of personhood from those who consumed the water. They also caused parents to strip their children of their own personhood. If ever there was an egregious violation of the right to bodily integrity, this is the case; the affront to human dignity in this case is compelling, and defendants’ conduct is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe their conduct is constitutionally permissible under the Due Process Clause. We therefore agree with the district court that plaintiffs have properly pled a violation of the right to bodily integrity against Howard Croft, Darnell Earley, Gerald Ambrose, Liane Shekter-Smith, Stephen Busch, Michael Prysby, and Bradley Wurfel, and that the right was clearly established at the time of their conduct.

Should discovery shed further light on the reasons behind their actions (as but one example, a governmental interest that trumps plaintiffs’ right to bodily integrity), they are free to raise the qualified immunity defense again at the summary judgment stage.

[Discussion of Flint’s status as an arm of the state while under emergency management and partial dissent by Judge McKeague omitted.]

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Noah Hall

Indiana Supreme Court protects the public trust in Great Lakes shorelines – property owners petition U.S. Supreme Court for certiorari

On: October 18, 2018

In: Public Trust, Water Law Reform

The following guest post is by Jeffrey B. Hyman, Senior Staff Attorney with the Conservation Law Center in Bloomington, Indiana. Jeff is counsel for respondent/intervenors Alliance for the Great Lakes and Save the Dunes in the Gunderson v. State of Indiana litigation.

Early this year the Indiana Supreme Court delivered a landmark public trust and equal footing decision in Gunderson v. State of Indiana. The Indiana Supreme Court ruled that at statehood, under these doctrines, Indiana acquired the bed of Lake Michigan within Indiana’s borders below the common-law “natural” ordinary high water mark (OHWM), including temporarily exposed shores. The Indiana Supreme Court also ruled that the state never conveyed the disputed shore to any private owner, including the Gundersons, and that the state continues to hold the shore in an inalienable trust for traditional public uses such as fishing and walking. With regard to ownership of the lakeshore, this is a unique decision for the Great Lakes region, where most states have relinquished their shores to private ownership.

The Indiana Supreme Court defined the natural OHWM based on the traditional concept used for non-tidal navigable waterbodies: the point on the shore where soil, vegetation, or other physical marks change from those characteristic of a water-influenced environment to those characteristic of terrestrial uplands.

The Gundersons had initiated their lawsuit in the trial court with the claim that under their private deed and plat, they held exclusive title to the disputed lakeshore down to the instant edge of the water where it laps at the shore at any given moment. The Gundersons were undoubtedly encouraged by recent public trust cases in Michigan and Ohio. In 2005, a majority of the Michigan Supreme Court held in Glass v. Goeckel that the public has the right to walk along the exposed shore below the traditional OHWM, even if the shore is privately owned to the low water mark. Even though this majority holding was not favorable for the Gundersons, the long and biting dissent in Glass argued that the boundary of public rights should instead be the instant water’s edge. In Ohio’s 2011 public trust case of State ex rel. Merrill, the Ohio Supreme Court came to a conclusion different from both the majority and the dissent in Glass, ruling that the boundary of state title and public rights on Lake Erie shores extends to the “line at which the water usually stands when free from disturbing causes.” Although the Merrill court did not explain this line in terms of physical marks, the court said that this line is not the traditional OHWM. But, said the Ohio court, neither is it the instant water’s edge. (For more on the Merrill decision, see Professor Ken Kilbert’s prior guest post.)

The defendant state and the two sets of intervenors argued that the case was governed not by the Gundersons’ private deed and plat but rather by the federal public trust and equal footing doctrines. According to these doctrines, upon winning the Revolutionary War, each of the original 13 states acquired title (previously held by the sovereign in England) to the beds of its navigable water bodies, up to the high-water mark, to hold in trust for its citizens. To ensure that each new state subsequently carved out of the territories is admitted to the Union on an “equal footing” with the original states, the equal footing doctrine constitutionally mandates that each new state automatically receive at statehood the same right of title to the beds of its navigable waterbodies as that held by the original states.

The Indiana trial court, intermediate appellate court, and high court all agreed that these doctrines governed the dispute, but with significant twists. The trial court ruled that the state acquired the shore under the equal footing doctrine, owns it up to an administrative water-elevation line advocated by the Indiana DNR, and holds it for general public recreational uses. (See this prior post on the trial court decision by Kyle Peczynski.) The intermediate Court of Appeals ruled that the state acquired the shore to the natural OHWM, but now the Gundersons own legal title down to the low water mark, subject to public rights of use. The Indiana Supreme Court, unraveling the tangle, ruled that the state acquired exclusive title to the shore below the traditional natural OHWM and still owns it to that boundary, but that public rights on the shore are limited in scope. Update: In February 2019, the United States Supreme Court denied certiorari, preserving this landmark state court decision on the public trust doctrine.

Resources:

Gunderson v. State of Indiana, Indiana Supreme Court Opinion, published at 90 N.E.3d 1171 (2018)

Gunderson v. State of Indiana, Petition for Writ of Certiorari in the Supreme Court of the United States

Gunderson v. State of Indiana, Petition for Writ of Certiorari in the Supreme Court of the United States, Supporting Appendix (includes all state court decisions)

Gunderson v. State of Indiana, Opposition to Certiorari by Alliance for the Great Lakes and Save the Dunes

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Noah Hall

Supreme Court considers federal interests and powers in interstate water cases

On: July 2, 2018

In: Canada and Transboundary Waters, Water Law Reform

The US Supreme Court issued a pair of opinions this term dealing with the role of the federal government in ongoing interstate water disputes: (1) Texas v. New Mexico and Colorado; and (2) Florida v. Georgia. The cases are before the Court under “original jurisdiction” - they are being heard on first impression rather than on appeal (although they have been reviewed and reported on by appointed Special Masters).

Substantively, both cases involve disputes between neighboring states regarding obligations and rights to shared waters, whether by agreement (interstate compact) or common law (equitable apportionment). Texas argues that New Mexico is violating the terms of their 1938 Rio Grande Compact with a self-serving interpretation of that agreement’s obligation on New Mexico to deliver water to a reservoir (in New Mexico) for use in Texas. Florida argues that Georgia is taking more than its equitable share of water for municipal and agricultural use from the Apalachicola-Chattahoochee-Flint basin and harming the downstream ecosystem in Florida. But before reaching the merits of these interstate disputes, the Court first had before it questions balancing federal and state control of shared interstate waters.

In the Rio Grande Compact dispute, the United States weighed in to protect downstream flows that it must deliver to Mexico pursuant to an international treaty. Justice Neil Gorsuch, writing for a unanimous Supreme Court, allowed the United States to bring its claims to defend "distinctly federal interests" - namely treaty obligations and the federal government's role in the Rio Grande compact operations. The case now moves forward with the United States as a key player.

In the Apalachicola-Chattahoochee-Flint basin dispute, Georgia argued that the Supreme Court could not decide the case without the U.S. Army Corps of Engineers at the table. The Corps controls the upstream water in Georgia that Florida wants conserved, and the United States sided with Georgia, stating it would not alter its control of the upstream water (ostensibly for navigation and flood control). The Special Master had sided with Georgia. The Supreme Court, by a 5-4 majority, instead sided with Florida and held that further proceedings were necessary to determine if the Court can provide redress for Florida's alleged harms.

For more detailed analysis of the Florida v. Georgia case and the Supreme Court's closely divided 2018 opinion, see Reed Benson's article: "Can a State's Water Rights Be Damned? Environmental Flows and Federal Dams in the Supreme Court." And check out the “infographic argument explainers” for Texas v. New Mexico and Florida v. Georgia at Subscript Law.

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Noah Hall

Equal Justice Works Fellow Erin Mette joins the Great Lakes Environmental Law Center to focus on children’s health in Detroit and Flint

On: June 30, 2018

In: Detroit, Environmental Justice, Students

Equal Justice Works has awarded recent Wayne Law graduate (and former GLELC student fellow) Erin Mette a two-year fellowship to work with the Great Lakes Environmental Law Center on urban children’s health. Erin’s project will focus on protecting children in Detroit and Flint from home-based environmental health hazards. As a staff attorney with GLELC, Erin will provide legal counseling and representation to affected families and work for policies that address the root causes of this unique environmental justice issue.

For too many residents in environmental justice communities, their home is a hazard to their health. Home-based environmental health hazards include lead paint on the walls of older homes and a lack of access to clean drinking water due to lead contamination and water service shutoffs. Children are especially vulnerable to the life-long health impacts that these hazards cause. Additionally, these hazards disproportionately affect children in low-income communities of color, whose voices have typically been excluded from the process of creating and enforcing the standards meant to prevent such harms. The families impacted by home-based environmental health hazards overwhelmingly lack access to legal services to help them address these issues. Through her Equal Justice Works fellowship, Erin will provide a wide variety of direct legal services to families confronting home-based environmental health hazards to ensure that those families are being adequately protected from such hazards.

Erin’s Equal Justice Works two-year fellowship is sponsored by Munger, Tolles & Olson LLP and an anonymous donor. Equal Justice Works is a nonprofit corporation dedicated to creating a just society by mobilizing the next generation of lawyers committed to equal justice. Each year, it provides funding to a limited number of applicants that have proposed innovative public interest law projects that seek to address pressing legal issues around the country through a highly competitive and rigorous process. Erin is the GLELC’s second Equal Justice Works fellow. Nick Leonard, GLELC’s Executive Director, initially joined GLELC in 2014 through an Equal Justice Works fellowship.

Check out this story about Erin from the Washtenaw County Legal News. Thanks to GLELC’s blog for the cross-posting, and follow GLELC for updates on Erin’s work.

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Noah Hall

New Second Edition of Modern Water Law – comprehensive text now includes human right to water

On: March 24, 2018

In: Book Reviews, Environmental Rights, Students, Water Law Reform

Our new Second Edition of Modern Water Law: Private Property, Public Rights, and Environmental Protections has been published by Foundation Press and is available on Amazon. Co-authored again with Robert Adler, the Jefferson B. and Rita E. Fordham Presidential Dean, and Robin Kundis Craig, the James I. Farr Presidential Endowed Chair of Law, both at the University of Utah College of Law.

Modern Water Law provides a comprehensive text to study the range of legal issues and doctrines that affect water resources. We begin with private water use rights, including common law doctrines for riparian reasonable use and prior appropriation, as well as groundwater rights and the statutory schemes for administering water use rights. The book next details the range of public rights in water, including navigation, the public trust doctrine, federal reserved rights for tribal and public lands, and interstate water management. The book then explores modern challenges and environmental protection goals, focusing on the energy-water nexus, water pollution, and endangered species conflicts. The final chapters combine these concepts in the context of complex watershed restoration challenges and water rights takings litigation.

The second edition begins with entirely new coverage of the human right to water, including a 2017 federal case – Boler v. Earley/Mays. v. Snyder – regarding constitutional rights in the wake of the Flint, Michigan water crisis. (And great timing, as the Supreme Court denied review of the case just this week as our book came out in print.) Other major changes and developments include new cases on water use permitting, “takings” of private water rights, tribal rights to groundwater, interstate water disputes, and U.S.-Mexico water diplomacy. The second edition continues the logical organization that presents the field in appropriate depth for a semester course, with clear explanations and helpful questions and comments.

Below is a summary of contents (for more details, see the full Table of Contents and Cases):

1. Introduction
PART I: PRIVATE PROPERTY RIGHTS TO USE WATER
2. Riparian Law
3. History and Principles of Prior Appropriation
4. Groundwater
5. Modern Application of Water Law
PART II: PUBLIC RIGHTS AND INTERESTS IN WATER
6. Control and Ownership of Navigable Waters
7. Public Rights in Water: The Public Trust Doctrine
8. Federal Water Interests
9. Interstate Water Pollution, Apportionment and Management
10. The Water-Energy Nexus
PART III: ENVIRONMENTAL PROTECTION OF WATER RESOURCES
11. The Intersection of Water Quality and Water Quantity
12. The Federal Endangered Species Act, Water Management, and Water Rights
13. Protecting and Restoring Watersheds and Water Systems
14. Public Interests, Private Rights in Water, and Constitutional Takings Claims

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Noah Hall

UN Special Rapporteur on Human Rights and the Environment presents 16 Framework Principles on Human Rights and the Environment in final report to UN Human Rights Council

On: February 28, 2018

In: Environmental Justice, Environmental Rights

Professor John Knox, a leading expert on international environmental and human rights law, is scheduled to present his final reports as Special Rapporteur on Human Rights and the Environment to the United Nations Human Rights Council this week. In July 2012, the United Nations Human Rights Council appointed Professor Knox to a three-year mandate as its first Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and in March 2015, his mandate was extended for three years and his title changed to Special Rapporteur. He also serves as the Henry C. Lauerman Professor of International Law at Wake Forest University School of Law.

The main report presents 16 Framework Principles on Human Rights and the Environment, which summarize the obligations of States under international human rights law relating to the environment, as they have been applied and clarified by human rights bodies. The obligations are based on a wide range of human rights, including rights to life and health. The role of human rights in international environmental law has expanded enormously over the last two decades (e.g., references to human rights in the Paris Agreement). And as Professor Knox notes, there is even more action in domestic law. More than 100 countries now have a constitutional right to a healthy environment (the United States is of course still a notable exception). Building on these developments, the report encourages the Human Rights Council to support recognition of the human right to a healthy environment for the first time in a global intergovernmental instrument, such as a resolution of the UN General Assembly.

Professor Knox summarized and briefly discussed the 16 Framework Principles in a series of tweets in his role as UN Special Rapporteur on Human Rights and the Environment (twitter @SREnvironment). With his permission, I’ve compiled them for readers below:

The first Framework Principle is overarching: “States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfill human rights.” It's a simple fact: we can't enjoy our rights to life, health, etc. without a healthy environment.

The second Principle is the converse of the first: “States should respect, protect and fulfill human rights to ensure a safe, clean, healthy and sustainable environment.” The exercise of rights to free expression, association, etc. is vital to environmental protection.

The first two Principles express the fundamental interdependence of human rights and the environment: we need a healthy environment to enjoy our human rights, and the exercise of human rights helps to protect the environment.

The third Framework Principle applies a basic human rights norm to environmental issues: States should prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment.

Discrimination may be direct or indirect. Direct discrimination in the environmental context includes failing to ensure that minorities have the same access as others to information about environmental matters, participation in decision-making, remedies for harm, etc.

Indirect discrimination includes measures such as authorizing hazardous facilities in minority communities. It is also prohibited unless it meets strict requirements of legitimacy, necessity and proportionality.

To address indirect as well as direct discrimination, States must recognize that environmental harm can both result from and reinforce existing patterns of discrimination, and take effective measures against the underlying conditions that cause or perpetuate discrimination.

The fourth Framework Principle on Human Rights and the Environment is that States should provide a safe and enabling environment in which those who work on human rights or environmental issues can operate free from threats, harassment, intimidation and violence.

As the Guardian has recently reminded us, environmental defenders are often harassed, attacked and even murdered - an average of 4 are killed every week. Members of indigenous peoples and traditional communities are especially at risk.

Because a healthy environment is necessary for the enjoyment of human rights, environmental defenders are human rights defenders, whether or not they identify themselves that way. States must do more to protect them and all other human rights defenders.

The fifth Framework Principle on Human Rights and the Environment is simple: States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters.

States often fail to protect these rights when they are exercised in opposition to the State, but that's when protecting them is most important. States must never respond with force or detention, the misuse of criminal laws, or the threats of such acts.

The sixth Framework Principle is: States should provide for education and public awareness on environmental matters. Environmental education should help students appreciate and enjoy the natural world, and strengthen their capacity to respond to environmental challenges.

Increasing public awareness of environmental matters should continue into adulthood. States should make the public aware of environmental risks that affect them, and build their capacity to understand environmental challenges and policies.

Framework Principle 7: States should provide public access to environmental information by collecting and disseminating information and by providing affordable, effective and timely access to information to any person upon request.

Principle 8, which is closely related to Principle 7, says: States should require the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights.

The ninth Framework Principle on Human Rights and the Environment is that States should provide for and facilitate public participation in decision-making related to the environment, and take the views of the public into account in the decision-making process.

Ensuring that environmental decisions take into account the views of those who are affected by them increases public support, promotes sustainable development and helps to protect the enjoyment of rights that depend on a safe, clean, healthy and sustainable environment.

Principle 10: States should provide for access to effective remedies for violations of human rights and domestic laws relating to the environment.

Procedures must be impartial, independent, affordable, transparent and fair, and have the necessary expertise and resources.

Principle 11: States should establish and maintain substantive environmental standards that are non-discriminatory, non-retrogressive and otherwise respect, protect and fulfill human rights.

Limited resources may prevent immediate realization of standards that prevent all environmental interference with human rights. States have discretion to decide how to allocate their resources between environmental and other goals, but the discretion isn’t unlimited.

Substantive environmental standards must comply with obligations of non-discrimination, and there’s a strong presumption against retrogressive measures. The standards must not strike an unjustifiable or unreasonable balance between environmental protection and other goals.

Once environmental standards have been adopted, Framework Principle 12 says that States should ensure the effective enforcement of their environmental standards against public and private actors.

Businesses, too, have responsibilities to avoid causing or contributing to adverse human rights impacts through environmental harm, and to try to prevent or mitigate adverse human rights impacts directly linked to their operations, products or services.

Principle 13: States should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights.

This includes not only negotiating and fulfilling environmental agreements, but also ensuring that other types of agreements, such as those on trade and investment, support, rather than hinder, human rights and a healthy environment.

Framework Principle 14: States should take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities.

Those who may be especially at risk from environmental harm include women, children, persons living in poverty, members of indigenous peoples and traditional communities, older persons, persons with disabilities, ethnic, racial or other minorities and displaced persons.

Persons may be especially vulnerable because they are unusually susceptible to certain types of environmental harm, or because they are prevented from exercising their human rights, or both.

States should protect the most vulnerable from environmental harm, including by carefully assessing the impacts of proposals on them, developing effective environmental education and awareness programmes, and facilitating their informed participation in decision-making.

Framework Principle 15: States should comply with their obligations to indigenous peoples and traditional communities, including by recognizing their rights to the lands, territories and resources that they have traditionally owned, occupied or used.

States should consult with indigenous peoples and traditional communities and obtain their free, prior and informed consent before relocating them or taking other measures that may affect their relationship to their ancestral territories.

Principle 16: States should respect, protect and fulfill human rights in the actions they take to address environmental challenges and pursue sustainable development.

Even when States are taking steps to address environmental challenges or pursue sustainable development, they must still ensure that those actions are taken in accordance with their human rights obligations.

A human rights perspective informs and strengthens environmental policy-making. Ensuring that those most affected can obtain information, freely express their views and participate in decision-making makes policies more legitimate, coherent, robust and sustainable.

Along with these Framework Principles, the UN Human Rights Council will receive a companion report on the environment and rights of the child. It describes how environmental harm interferes with the ability of children to enjoy their rights and discusses the obligations of States to take measures to protect children from such interference.

My take - a terrible shortcoming of U.S. environmental law is the inequity it allows (and sometimes creates) in distributing pollution and environmental harms. Environmental law is about protecting life, human included. American law has the opportunity and need to expand our system of Constitutional protections to include human rights to basic environmental necessities - meaning equity and due process in providing safe drinking water, clean air to breathe, and healthy land and homes for dwelling.

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Noah Hall

Environmental Justice in Practice – national conference at Wayne Law

On: January 15, 2018

In: Conferences and Events, Detroit, Environmental Justice

Wayne Law is hosting a national conference on environmental justice Friday January 26, 2018. Environmental Justice in Practice features a superb line-up of advocates, attorneys, community leaders, organizers, and policy-makers.

Panels will cover energy and climate justice, water access and affordability, urban air quality, and careers in environmental justice. The conference is co-sponsored by Wayne Law's Transnational Environmental Law Clinic and Environmental Law Society, CURES at Wayne State, the University of Chicago Law School's Abrams Environmental Law Clinic, the American Bar Association's Environmental Justice Committee of the Section of Civil Rights and Social Justice, the Great Lakes Environmental Law Center, and the Environmental Law Institute.

The conference is free (even a free lunch), but you must register online by January 19, 2018. Tremendous thanks to my colleague Professor Nick Schroeck - email him for more details or questions.

Program

Opening Remarks:

Dr. Agustin V. Arbulu, executive director, Michigan Department of Civil Rights (MDCR)

Keynote Speaker:

Mustafa Santiago Ali, senior vice president of climate, environmental justice & community revitalization, Hip Hop Caucus

Panel 1 will cover Environmental Justice issues related to energy production and distribution and climate change impacts on EJ communities.

Energy and Climate Justice

Denise Abdul-Rahman, environmental climate justice chair, NAACP Indiana
Jacqui Patterson, director, Environmental and Climate Justice Program, NAACP (invited)
Juliana Pino, policy director, Little Village Environmental Justice Organization (LVEJO) (invited)
Tony Reames, assistant professor, University of Michigan

Panel 2 will feature an in-depth exploration of Environmental Justice issues related to water access in Detroit, Chicago and Flint, including shutoffs and affordability challenges.

Water Access and Affordability

Mark P. Fancher, staff attorney, Racial Justice Project, ACLU of Michigan
Monica Lewis-Patrick, co-founder, president, and CEO, We The People Of Detroit
Cyndi Roper, senior policy advocate, Natural Resources Defense Council

Lunch featuring keynote speaker Charles Lee, senior policy advisor, Office of Environmental Justice, U.S. Environmental Protection Agency

Panel 3 will explore air quality challenges, regulation and enforcement in Environmental Justice communities, state and local perspectives.

Urban Air Quality

Councilwoman Raquel Castañeda-López, city of Detroit
State Rep. Stephanie Chang, Michigan House of Representatives
Michelle Martinez, executive director, Third Horizon Consulting; coordinator, Michigan Environmental Justice Coalition

Panel 4 will feature professionals in the environmental field focusing on a variety of opportunities for new attorneys, organizers, and other roles.

Careers in Environmental Justice

Jeremy Orr, vice-chair, Environmental Justice Committee - Civil Rights & Social Justice Section, American Bar Association (ABA)
Marnese Jackson, regional field organizer, NAACP Environmental & Climate Justice Program
Maria Thomas, power up program leader, Soulardarity
Jalonne White-Newsome, senior program officer, Environment, The Kresge Foundation

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Great Lakes Law

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Noah Hall

Open Source Property: A Free Casebook

On: January 10, 2018

In: Book Reviews, Students

I’m teaching property again this semester and have compiled a new book for my students, Open Source Property: A Free Casebook. As the title describes, the book is available under open source licensing, totally free and public. Students and anyone else can have it at no cost (except for the time and energy downloading a 650-page book) at
http://www.greatlakeslaw.org/files/Open_Source_Property_Casebook_Hall.pdf.

In 16 chapters, the book covers:

1. Ownership
2. Subject Matter of Property
3. Property in Persons
4. Intangible Property
5. Intellectual Property
6. Allocation
7. Water and Oil
8. Property Torts and Claims
9. Found and Stolen Property
10. Adverse Possession
11. Co-ownership and Marital Property
12. Leasing Real Property
13. Nuisance
14. Zoning
15. Common-Interest Communities
16. Takings

The book builds on Open Source Property, copyright 2015-2017 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet. The original materials may be reused under the terms of the Creative Commons Attribution NonCommercial 4.0 International license.

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Noah Hall

"Water Law" – new book explores private rights and public interests in freshwater

On: December 7, 2017

In: Book Reviews, Students, Water Law Reform

I have a new book out this year – it’s about water law and aptly named “Water Law.” Water Law: Concepts and Insights (full title) is another collaboration with Robin Kundis Craig, the James I. Farr Presidential Endowed Chair of Law, and Robert Adler, the Jefferson B. and Rita E. Fordham Presidential Dean, both at the University of Utah College of Law. (The cover photo of the Detroit River was taken from Belle Isle State Park last fall.)

“Water Law” is intended for lawyers, students, and anyone interested in understanding what water law is all about and how it shapes freshwater use and protection in the United States. The book provides a general overview of basic water law doctrines and an exploration of how water law – the law and policies governing allocation of freshwater – fit into broader ecological and environmental issues. Presented in 14 chapters, it begins with an overview of water use and protection challenges (including climate change) and a ‘hydrology for lawyers’ crash course. The next several chapters cover private water use rights under state law – riparian reasonable use for lakes and rivers in the east, prior appropriation for water in the west, and a spectrum of groundwater rules across the 50 states. It then explores public rights to water, notably the public trust doctrine and water rights reserved for Native American tribes. Constitutional law melds with water law in chapters about interstate disputes and federal powers, focusing on compacts and treaties governing the Great Lakes and Colorado River. Final chapters put the laws governing water use into a broader context, exploring intersections with energy policy, water quality, endangered species protections, and broader watershed management. “Water Law” concludes by looking at conflicts between private rights to water (constitutionally protected as property) and public and governmental interests in water (commonly decried as “takings”).

The final chapter tees up the fundamental question of water law – is water a private good, a person’s property, to be bought and sold like books or stocks? Or is water something different, a public and common treasure for all, to be stewarded for the greater good as a human right? “Water Law” does not presume a single answer, but gives the reader an organized tour of the field so she can reach her own conclusions.

“Water Law: Concepts and Insights” (331 pages) is published by Foundation Press. Available on Amazon (and consider making Great Lakes Environmental Law Center your AmazonSmile charity), order through your favorite bookseller, check out on Google Books, and preview the table of contents.

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Great Lakes Law

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Noah Hall

Detroit Enacts New Ordinance to Protect Residents From Dust Pollution

On: November 16, 2017

In: Detroit, Energy, Environmental Justice

Guest post by Great Lakes Environmental Law Center staff attorney Nick Leonard.

On a summer day in July of 2013, a dangerous dark cloud of dust blew along the Detroit River between Windsor, Canada and Detroit. Video captured by an individual showed several people standing along the riverfront transfixed by the dust cloud as it completely obscured their view of the Ambassador Bridge, a normally omnipresent visual landmark for Detroit and Windsor residents alike. The dust cloud was coming from massive piles of petroleum coke that were being stored on the banks of the Detroit River. For many Detroiters, particularly those in Southwest Detroit, the event was an egregious incident, but not an unfamiliar one. After all, many had been claiming that dust from the same petroleum coke piles that caused the dust cloud, as well as a number of other bulk material facilities, routinely blanketed everything in their neighborhood, right down to the kitchen table. Residents had been raising the alarm and had been asking a lot of good questions about the health risks for their families and what was being done about the problem. They wanted answers and needed solutions. The images and video of the dust cloud blowing across the Detroit River had gotten the attention of other advocates, legislators, and government agencies. The moment to take action had arrived and the Great Lakes Environmental Law Center got involved help residents frame their questions, search for answers, and push for solutions.

One of the first questions residents had was what were these materials that were being stored in huge, open piles in their neighborhood and along the Detroit River? One such material was petroleum coke, or “petcoke,” which is a solid waste byproduct created by the process of transforming dirty tar sands oil into useable gasoline. Petcoke piles began piling up in Southwest Detroit after the Marathon Petroleum oil refinery in the neighborhood had begun accepting large quantities of tar sands oil from Canada via pipelines that travel under the Great Lakes. While petcoke can be used as an industrial fuel, its use causes higher amounts of sulfur dioxide and carbon dioxide emissions compared to coal. As such, it’s too polluting and inefficient to be of much use in the United States. While competitive markets for petcoke as a cheaper version of coal have existed in the developing world, the Supreme Court of India’s recent order banning the use of petcoke in certain states due to air quality concerns suggests these markets may be drying up. The piles of petcoke in Detroit were part of the chain of pollution and degradation that follows tar sands oil from mining to piping to refining to burning. Every step impacts communities with little local benefit, and the dust pollution was Detroit’s burden to bear for the global oil industry. (For more background and analysis of the environmental justice issues surrounding petcoke, see this prior post and article by Erica Shell.) However, petcoke was not the only material creating dust that was impacting the health of Detroit residents. Facilities throughout Detroit were storing a wide variety of materials in huge, uncovered piles, including metallurgical coke, coal, limestone, steel slag, and asphalt millings. All of these materials were contributing the dust problem that had been identified by residents, and any solution had to address not just petcoke, but these other materials as well.

While residents knew that the dust that blanketed their neighborhoods was a nuisance, what they wanted to know was whether dust from these enormous, open piles was impacting their health. What we found was that numerous studies had concluded that these facilities can create localized hot spots of particulate matter concentrations above the national, health-based ambient air quality standard set by the U.S. Environmental Protection Agency. Particulate matter is very small, inhalable particles with a wide variety of chemical compositions that are 10 micrometers or less in diameter. It is commonly referred to as PM10. These particles present a serious public health risk because they are small enough to be inhaled, enter people’s lungs, and get into their bloodstream where it can cause serious health impacts. Studies have shown a significant association between short-term exposure to elevated concentrations of PM10 and respiratory-related emergency department visits, hospitalizations, and exacerbation of asthma symptoms, particularly amongst children. Another study conducted in Detroit found that increased concentrations of PM10 pollution is associated with an increased risk of hospitalization for congestive heart failure amongst seniors. Some materials presented greater dust hazards than others. Petcoke storage and handling in particular has been found to cause concentrations of PM10 up to 32 times the ambient air quality standard due to its high silt content. Other materials, such as metallurgical coke and coal, contain trace elements of lead and arsenic that concentrate in dust that is blown into surrounding environments. The potential for facilities that store large quantities of material such as petcoke, metallurgical coke, limestone, and asphalt millings in open piles to create a localized public health problem was clear.

It was also equally clear where these facilities were located and whose neighborhoods they were polluting. In Detroit alone there were over a dozen facilities, and many were located in a concentrated area in Southwest Detroit in a neighborhood that was already overburdened by air pollution. Collectively, about 20,000 residents lived within a half mile of these facilities, and all of them were low-income communities of color. For example, one facility that we identified has approximately 3,000 residents living within a half mile and 99% of those residents are people of color and 70% live below the federal poverty line. Based on our review, it was clear that bulk material facilities were disproportionately impacting the health of people in low-income communities of color, a classic case of environmental injustice.

And what was the law doing about this injustice and the threat to people’s health? Not much. Failing began at the local level, with a facility that stored metallurgical coke along the Detroit River that had not obtained the necessary zoning permits. At the state level, we identified numerous points of concern. The main requirement for bulk material facilities under state law is the development of a fugitive dust plan pursuant to MCL 324.5524. However, upon review it was determined that many these plans do not contain adequate details to provide assurance that facilities are sufficiently controlling dust emissions given that many of these facilities exist in close proximity to residents, schools, and parks. The fugitive dust plans for many Detroit facilities are one-page documents with vague language such as “[m]easures will be taken to minimize trackout of material from unpaved surfaces at the facility onto the paved roadways.” Many different facilities have fugitive dust plans that are nearly identical, suggesting that industry is not taking the practice of drafting their plans very seriously. To make matters worse, record reporting and dust monitoring requirements under MCL 324.5524 are very lax. Facilities are not required to regularly submit records regarding the implementation of the fugitive dust controls described in their plans to the Michigan Department of Environmental Quality and there is no requirement regular monitoring of emissions. In fact, state law provides that during high speeds, which are known to cause spikes in dust emissions, facilities are exempt from all opacity limits.

Fortunately, Detroit was not the first community to confront this issue. As this issue was bubbling up in Detroit, Chicago’s Department of Public Health was considering the creation of local regulations to control dust emissions from bulk material facilities. Chicago’s regulations became the model of Detroit’s ordinance. Over the course of 4 years, we worked with numerous community leaders and partners to develop a Detroit dust ordinance that was passed by the city council on Halloween 2017 by a 7-2 vote.

At their heart, both Chicago’s regulations and Detroit’s ordinance operate in similar fashions. Both require bulk material facilities to install the necessary dust control measures to prevent the release of fugitive dust. Under both, any facility that stores bulk solid material must submit a more detailed dust plan to a local regulatory agency that describes all control measures, devices, and technologies to be used to control dust emissions. For example, both Chicago and Detroit require facilities that have outdoor bulk solid material piles to describe how they will monitor wind speeds and what dust control strategies to be utilized during high wind conditions in their dust plan.

Additionally, both Chicago and Detroit specify what types of control measures must be used for specific types of materials. One of the most important components of both Chicago’s regulations and Detroit’s ordinance was that petcoke, metallurgical coke, and coal must be handled and stored in a completely enclosed structure. This requirement is significant and was meant to prevent the reoccurrence of the 2013 Detroit petcoke dust cloud and to make sure that metallurgical coke and coal dust are not carrying trace elements of lead and arsenic into neighborhoods. All other bulk solid materials must employ specified dust control measures for specific parts of their facility, including their outdoor storage piles, conveyors and transfer points, facility roadways, vehicle loading and unloading operation, and outgoing trucks.

Another key component of both Chicago’s and Detroit’s regulatory scheme was requiring facilities to continuously monitor their PM10 emissions. Both Chicago and Detroit generally require facilities that store bulk solid materials to purchase, install, and operate continuous PM10 monitors that are capable of delivering PM10 concentration data in real-time to the facility. This requirement enables facilities to take more aggressive action to control short term spikes in dust emissions when their PM10 monitors detect concentrations above a reportable action level. Chicago’s regulations do not set a uniform reportable action level for each facility, but instead requires that a reportable action level be established by each facility’s fugitive dust plan. Detroit’s ordinance establishes 150 micrograms per cubic meter as the reportable action level. Another key difference is that while Chicago required PM10 monitors to be Federal Equivalent Method monitors, Detroit does allow for facilities to utilize non-Federal Equivalent Method monitors that are deemed acceptable by local regulators.

Chicago and Detroit both regulate outdoor bulk material pile height storage and siting. Chicago limits outdoor pile height to 30 feet while Detroit limits outdoor pile height to 50 feet. Additionally, Detroit requires outdoor storage piles to be screened from the view from adjacent roadways and from adjacent properties. Chicago requires outdoor piles to be set back at least 50 feet from any waterway while Detroit requires outdoor piles to be set back at least 25 feet from any waterway.

Beyond the differences described above, Chicago’s regulations and Detroit’s ordinance does have one additional significant difference. In both Chicago and Detroit, the definition of “bulk solid material” is a threshold definition. It determines what types of materials will be subject to the requirements in Chicago’s regulations and Detroit’s ordinance. Chicago’s regulations expressly excludes construction and demolition materials such as crushed stone, sand, gravel, and hot mix asphalt plants and ready mixed concrete plants. Detroit’s ordinance contains a more expansive definition of bulk solid material, as it expressly includes construction materials as well materials such as asphalt millings, ores, iron and steel slag, gravel, sand, and limestone. As such, Detroit’s ordinance applies to more materials than Chicago’s regulations.

However, with Detroit’s more expansive definition of “bulk solid materials” came a compromise. As mentioned above, many bulk solid material facilities are regulated by the state, albeit by more relaxed standards than those posed in Detroit’s ordinance. To satisfy industry complaints that Detroit’s definition of “bulk solid materials” was overly broad, Detroit created a safe harbor for specific types of facilities. Facilities that store or handle construction materials, which is defined to include asphalt millings, ores, iron and steel slag, gravel, sand, and limestone, and that have already submitted a fugitive dust plan to the Michigan Department of Environmental Quality pursuant to state law qualify for the safe harbor in Detroit’s ordinance and only needs to comply with the requirements in section 22-5-6. This section requires a facility to comply with the pile height limits and the waterway setback requirements described above, requires a facility to monitor wind speeds and to describe how it will limit dust emissions during high wind conditions, and requires the submission of additional information to supplement the existing fugitive dust plan requirements under state law. However, facilities that qualify for the safe harbor are not required to install the fugitive dust control measures described in Detroit’s ordinance, do not need to install PM10 monitors, and are not required to regularly submit their records to local regulators. Nonetheless, Detroit’s ordinance does grant local regulators the authority to ensure that qualified bulk solid material facilities are being good neighbors. BSEED has the authority to review all fugitive dust plans for qualified bulk solid material facilities to determine if it satisfies the requirements of section 22-5-6, is sufficient to protect the public health and environment, and is sufficient to prevent the emission of fugitive dust in a manner that would cause an unreasonable interference with the comfortable enjoyment of life and property. Local regulators are also required to conduct semi-annual inspections of qualified bulk solid material facilities. Lastly, if local regulators determine that a facility is not operating in compliance with its fugitive dust plan, is not in compliance with section 22-5-6, or if a facility is found to cause an unreasonable interference with the comfortable enjoyment of life and property, then it is disqualified from the safe harbor and must comply with all of the requirements contained in Detroit’s ordinance.

The takeaway is that while Detroit’s ordinance is broader in its scope, Chicago’s regulations are a bit stricter as to what it requires regulated facilities to do to control dust emissions. One key difference that’s important to note is that while Detroit addressed this issue by the city council enacting an ordinance, Chicago did so through administrative rulemaking. This is significant for a couple of reasons. First, the administrative process in Chicago appears to have been more amenable to technical comments than Detroit’s legislative process. Factors such as pile height and wind speeds have serious impacts on the amount of dust emissions that can be predicted to come from the facility and determining how those factors correspond to dust emissions requires reference to highly technical studies. However, while the Center repeatedly submitted verbal and written comments to city council members and city departments regarding technical studies relied upon in Chicago’s rulemaking process to determine limits for things such as pile height, these comments tended to get lost in the legislative wash. As a legislative action, the development of Detroit’s ordinance was largely driven by council members rather than technical experts. As a result, discussions tended to be focused on broader questions, such as who would be regulated by the ordinance, whether facilities should be required to install PM10 monitors, and what types of materials should be enclosed. Second, the city council sponsor of Detroit’s ordinance was subjected to political attack as a result of the ordinance. Regulated industries made large political contributions to her opponent who ran against her in an election that took place shortly after the ordinance was passed. Although the council woman prevailed, the general election results were much closer than the primary results had been just a few months earlier partially due to the influx in contributions from industry to her opponent.

The passage of Detroit’s dust ordinance after 4 years of consistent effort from numerous people in city government, community leaders, and residents over strong opposition from industry was a treasured and rare win for a community that often struggles to push back against the numerous environmental injustices that it is subjected to. Particularly in Southwest Detroit, existing air quality laws and regulatory systems simply are not adequate to protect the health of our country’s most vulnerable residents. Given this reality, it is easy for residents and advocates fighting for clean air to often feel overwhelmed and disillusioned in their attempts to work within existing systems. Increasingly, residents and advocates are trying to change existing systems by passing new laws that aim directly at the heart of environmental injustice. This ordinance is an example that shows impassioned residents, knowledgeable advocates, and dedicated decision-makers can create effective solutions to address environmental injustices, which will be important to keep in mind for the efforts ahead.

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Great Lakes Law

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Noah Hall

Federal appeals court opens the door to Constitutional claims against state officials for dangerous and inaccessible drinking water in Flint

On: September 30, 2017

In: Environmental Justice, Flint Water Crisis

A federal appeals court has allowed two lawsuits by Flint residents against state officials for Constitutional violations arising from the Flint water crisis to go forward, giving victims a big legal win with even bigger implications. In Boler v. Earley and Mays v. Snyder, 865 F.3d 391 (6th Cir. 2017), cert. denied, 583 U.S. __ (2018), the court held that alleged violations of substantive due process and equal protection could be brought in federal court against the state-appointed emergency manager (defendant Darnell Earley), the governor (defendant Rick Snyder), and over a dozen other public officials. The district court below had dismissed the Constitutional claims on various jurisdictional and legal grounds, ruling that plaintiffs were limited to remedies under the federal Safe Drinking Water Act. But a unanimous panel of the Sixth Circuit Court of Appeals reversed the lower court and rejected most of the state defendants’ arguments, most importantly holding that the federal Safe Drinking Water Act does not preempt Constitutional claims.

The plaintiffs in the two lawsuits (which were consolidated for appeal) brought suits pursuant to 42 U.S.C. § 1983 (which provides a federal cause of action for damages for violations of the Constitution) against the public officials for harm from lead poisoning, water contamination, and lack of access to safe water. The claims included: (1) violation of substantive due process through state-created danger; (2) violation of substantive due process through an invasion of the fundamental right to bodily integrity; (3) intentional race discrimination in violation of the Equal Protection Clause; and (4) impermissible wealth-based discrimination in violation of the Equal Protection Clause.

Before addressing the legal merits, the federal appeals court first summarized how state government, from the legislature and governor on down, created the Flint water crisis. The court especially focused on the passage (and re-passage) of the emergency manager law, the lack of democratic local government in Flint, and the decision to put Flint on untreated water from the Flint River while surrounding (wealthier) townships stayed with the treated Detroit water system.

The court then held that the federal Safe Drinking Water Act was not a substitute for protecting Constitutional rights that may have been violated in Flint. The SDWA directs the EPA to establish standards and compliance procedures and allows citizens to seek injunctions against violations. But the SDWA does not guard against unequal protection under those standards or deprivations of rights regardless of whether a system is deemed to be in compliance. The court first explained how an equal protection violation could arise under the SDWA:

“A government entity could provide some customers with water that meets the requirements of SDWA standards, but that is nonetheless dirtier, smellier, or of demonstrably poorer quality than water provided to other customers.… Even though not violating the SDWA, these situations could create an equal protection issue, particularly if such distinction were based on intentional discrimination or lacked a rational basis.”

The court then similarly laid out the basis for a substantive due process violation under the SDWA:

“Likewise, a state actor’s deliberately indifferent action concerning contaminants in public water systems, which created a special danger to a plaintiff that the state knew or should have known about, could violate the Due Process Clause without also violating the SDWA, if the hypothetical contaminants did not exceed the statutory maximums or were not regulated by it.”

The cases are now remanded back to district court (Eastern District of Michigan) where the plaintiffs can try their claims for Constitutional violations. Thanks to the many advocates for tireless work, from lead plaintiff Melissa Mays to the crew of dedicated Michigan civil rights lawyers and Michigan Law Professor Samuel Bagenstos. Looking beyond these two cases, the court’s decision may clear the way for more Constitutional litigation against environmental injustice at the hands of state actors. (See this recent article, After Flint: Environmental Justice as Equal Protection, by Northwestern University law professors David Dana and Deborah Tuerkheimer.) The Flint water crisis has shown the tremendous inequality and inequity within environmental law but this win could give citizens a new tool to protect their health and rights.

Special thanks to GLELC Fellow Erin Mette for research on this case.

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Great Lakes Law

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Noah Hall