I met environmental attorney Jim Olson 35 years ago, just as he was developing uncommon expertise in Michigan law and exhibiting an appealing measure of courtroom flair, both of which make him a towering figure in Great Lakes resource protection.
At the time he was defending the shoreline of the Crystal River in Leelanau County from being damaged by a golf course development proposed by Bob Kuras, owner of the Homestead Resort. I was a national correspondent for the NY Times, preparing an article on E.P.A. Administrator Bill Reilly’s decision to reverse the judgment of the agency’s regional director and clear the path for a state permit to build the course.
I’d never met Jim. I’d heard about him, though, because one of his many signature gifts as a lawyer and as an activist is his instinct for commanding prominent perches in regional struggles where resources, the law, community concern, and corporate belligerence converge.
On the way to permanently blocking Kuras’s golf course, Jim also helped me understand the signal goal of his life’s work: elevating a powerful but little-used theory of resource law — the public trust doctrine — to such prominence that judges, jurors, administrators and legislators would routinely rely on public trust principles to protect Michigan’s natural resources.
Public trust principles developed in ancient Rome. Jim became aware of the doctrine while working in the 1970s on one of Michigan’s first major environmental lawsuits, a fight to protect Lake Superior from a power plant and shipping complex. The court ruled in favor of the developer, deciding that industrial corporate interests were superior to the public’s rights protected by the public trust doctrine. Jim disputed the basis of the court ruling and has spent decades helping jurists and administrators understand the contemporary relevance of the public trust doctrine to resource protection, which is game changing.
Modern water and environmental regulations, developed in the 1970s and 1980s, are aimed at limiting damage from industrial enterprises, not preventing them altogether. They determine how much bad stuff a plant or city or car or truck can put in the air and water. Essentially, the Clean Water Act, Clean Air Act, and various statutes on hazardous waste still permit pollution, albeit at a much lower level than if the laws had never been enacted.
By applying public trust principles, natural resources are designated a “commons” that under law are required to be fully protected from harm before it occurs. It doesn’t call for limits on discharges. The doctrine intends to prevent harm altogether. It protects the shared, common resource from harm done by any one industry or special interest, or government. In other words, an industry is not granted the authority to operate unless it proves its project will not cause damage.
Jim’s has devoted his career to installing public trust principles in real world law and application. On Friday, July 31, in deciding a case on potential harms caused by a proposed oil pipeline tunnel across the Straits of Mackinac, the Michigan Supreme Court leaned heavily on public trust principles.
The court, in a 6-1 ruling, decided that the potential harms from building the tunnel were substantial, and ordered the state to reassess its construction permit issued in 2023. Judges reaffirmed the state’s public trust obligation to “to protect and preserve the waters of the Great Lakes and the lands beneath them for the public. The state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting, and boating for commerce or pleasure.”
From my perspective the court decision, the second time in two years that jurists relied on public trust principles to decide a major environmental case, achieved a second legal virtue just as valuable. The judges cemented Jim Olson’s conviction that arguing public trust law is a vital, fully operational, completely convincing and suitable strategy to protect Michigan’s matchless natural resources.
Legal Principles At Work
Here’s the basic foundation of Jim’s legal theory. The first piece is the Michigan Environmental Protection Act, which gives citizens the right to protect all natural resources from “conduct” that is “likely to result in pollution, impairment, or destruction” from any source. MEPA specifies that a government agency cannot authorize or approve a project that is likely to harm the environment if feasible and prudent alternatives exist.
Second, MEPA’s authority stems from its foundation in the state Constitution that recognizes a “paramount” public interest in safeguarding Michigan’s natural resources. Third, both the statute and the constitutional provisions derive their authority from the public trust doctrine, a legal principle that dates to the Roman Empire and requires states to protect water, fisheries, bottomlands and other public “commons” for the public’s benefit. The state’s responsibility is to ensure, as trustee, that those resources are not impaired in ways that cause substantial harm.
Olson had applied his approach in early career legal victories that compelled the Holiday Inn in Traverse City to change the design of an addition in order to protect the shoreline, and a second case in Marquette that prevented Cleveland Cliffs from harming bottomlands.
Later he won other prominent cases by arguing that public trust doctrine principles applied. In one he protected groundwater, a lake, and a surface stream in Mecosta County against efforts by Nestle, the world’s largest food company, to draw unlimited supplies for a new water bottling plant. The case spurred a bi-national compact between eight American states and Canada in 2008 to block big diversions of water from the Great Lakes.
Steps To Success
With each victory Olson drew closer to his ultimate goal: elevating and ensuring that jurists, juries, administrators, and legislators be aware of and apply the principles of public trust law as practical legal tools and cultural priorities in enforcing the law, deciding permits, and writing new legislation.
One critical step occurred in 2011 when Olson founded Flow Water Advocates, a Great Lakes water and environmental law advocacy group in Traverse City, to file cases and promote the idea that Great Lakes waters are a public “commons” protected under public trust principles.
A second occurred in 2012 when Olson joined Canadian author and activist Maude Barlow in formally introducing the concept to the Canadian and American leaders of the International Joint Commission (IJC), a bilateral agency founded in 1909 to help manage the Great Lakes and other waters that cross the boundaries of the two countries. It was the first time that a framework for managing the Great Lakes as a commons had been presented at such a high government level in both nations.
Other cases arguing public trust principles followed, including the state Supreme Court decision in 2024 that directed the Department of Environment, Great Lakes, and Energy to use its full authority to protect Michigan waters from the deluge of manure discharged from animal feeding and confinement operations.
Dana Nessel, Michigan’s attorney general, submitted a brief in the case that asserted that Olson’s public trust theory applied. “Under the age-old public trust doctrine, as well as contemporary federal and state law, the Michigan Department of Environment, Great Lakes, and Energy is bound to protect Michigan’s water from harmful pollution,” she said.
Until the July 31 decision it was the most important Supreme Court ruling on the environment this century.
The Supreme Court’s Monumental Tunnel Decision
On that Friday, the Michigan Supreme Court took an even more consequential step for ensuring the security of the state’s environment. This time, the court decided that the Michigan Public Service Commission failed to properly evaluate public trust protections and environmental harms, as required by state law, before granting Enbridge, Inc. a permit to build an oil pipeline tunnel beneath the Straits of Mackinac.
The court decision strengthens arguments that Olson, FLOW, and its tribal and environmental allies make about the calamitous risk of continuing to allow 500,000 barrels of oil to cross under the Straits daily in the 73-year-old Line 5 pipeline. By any measure, the potential for ecological harm is so paramount that public trust law requires the state government to prevent a calamity from occurring.
A case brought by Attorney General Nessel to void the bottomland easement Michigan granted to build Line 5 is pending in state court. Based on what the Supreme Court decided last month, that court could readily decide to revoke the easement and force the pipeline to shut down.
Much of the court’s decision will rest on public trust principles. Nessel argues that the public trust was violated when Michigan granted the developers of Line 5 a single payment of $2,450 for the easement in 1953 to cross the bottomlands of the Straits of Mackinac without determining whether the pipeline would improve or harm Great Lakes water. Nessel asks the state court to revoke the easement based on well-established public trust principles because the condition of the pipeline, its mounting age, and the stress from currents, bottom scouring, and ship traffic is not the same as it was in 1953.
A ruling in favor of the safety of the Great Lakes would be a monumental advance in resource protection, and more evidence that Jim Olson’s life work to elevate public trust principles to practical application in law and policy has been achieved.
