The ancient Roman doctrine guiding modern environmental fights

Key takeaways

The Enbridge Line 5 pipeline has been a contentious issue due to environmental and legal concerns, especially regarding potential leaks into the Great Lakes.
The Michigan Supreme Court recently sided with environmentalists by opposing a key permit for the pipeline, a decision rooted in broader legal and environmental debates.
The public trust doctrine is an ancient legal principle that designates water and other natural resources as belonging to the public, requiring state management to protect their value for current and future generations.
This doctrine has been relevant historically and is increasingly used today to influence environmental litigation, especially as traditional regulatory approaches face criticism.
The resurgence of the public trust doctrine reflects a growing desire to leverage legal tools that prioritize ecological and public interests in environmental decision-making.

Summary

Legal Battles Over Enbridge Line 5 in Michigan

This section explains the controversy surrounding the Enbridge Line 5 pipeline, which transports crude oil and natural gas liquids through the Great Lakes. Built in the 1950s, it has faced ongoing legal challenges due to environmental concerns about potential leaks into the freshwater ecosystem. The recent Michigan Supreme Court decision sided with environmentalists, voiding a key permit, and highlighted the broader battle to either upgrade the pipeline with a tunnel project or shut it down altogether. The legal disputes involve federal and state agencies and controversies over permits, environmental risks, tribal rights, and energy infrastructure.

The Public Trust Doctrine and Its Role in Environmental Law

This section delves into the historical and legal significance of the public trust doctrine, dating back to Roman times. It states that certain natural resources—like water, lakes, and shorelines—belong to the public and must be managed by the state as a trustee for current and future generations. The doctrine emphasizes protecting values such as navigation, recreation, and fishing. It is now being invoked in modern environmental cases, including the Michigan pipeline dispute, to argue that state agencies must consider public trust values when permitting industrial activities, especially around water bodies. The discussion highlights its broad application across all U.S. states and its resurgence as a legal tool amid dissatisfaction with traditional regulatory frameworks.

The Growing Use of the Public Trust Doctrine in Climate and Environmental Litigation

This section discusses why the public trust doctrine is gaining attention now. It is considered a resilient legal framework that offers an alternative avenue to address environmental issues as there is disillusionment with existing federal and state regulations. Environmental groups see it as a way to secure stronger protections for water resources, which are deeply valued by the public. The legal mechanism's flexibility allows judges to adapt it to modern environmental challenges, making it a powerful tool in ongoing efforts to prevent harmful development and ensure sustainable management of natural resources.

Show notes

A controversial pipeline project in Michigan has been stuck in legal limbo for years. But this month, the Michigan Supreme Court sided with environmentalists and leaned on an ancient legal framework: the public trust doctrine.

This doctrine, which dates back to the Roman Empire, says that natural resources, like water, belong to the public, and development must do no harm. Legal experts say this argument is cropping up more and more in climate and environmental lawsuits. Joining Flora to get into the details are environment reporter Vivian La, and law professor Oday Salim.

Guests:

Vivian La is the climate solutions reporter for Interlochen Public Radio and Grist in Northern Michigan.

Oday Salim is director of the Environmental Law & Sustainability Clinic and a co-director of the Environmental and Energy Law Program at the University of Michigan Law School.

Transcript will be available after the show airs on sciencefriday.com.

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