Traverse City Record-Eagle

Record-Eagle 150th Anniversary

October 5, 2009

Water Wars: Advocating for 'public trust'


In modern times, the doctrine has been expanded to include water and other natural resources, Olson said. The public trust also is a theoretical base in the Michigan Environmental Protection Act of 1970, or MEPA, that allowed citizens for the first time to bring suit against "unreasonable" environmental pollution, impairment or destruction by government or private action, a provision that has been weakened.

Olson said the public trust doctrine:

n Protects something that is publicly owned, not privately owned.

n Sets an outer boundary on self-interest, or selfish-interest, in using public resources for private gain.

n Transcends competing interests in a way similar to the Bill of Rights. It is a legal doctrine that says the courts can draw the line on human and government behavior in regard to publicly owned natural resources.

n Allows citizen participation and watchdog function.

n Government stewardship responsibility to protect and maintain public natural for future generations.

Uncharted region

Many consider Olson a pioneer in the public trust doctrine, but he credits mentor Joseph Sax, an environmental law professor who re-introduced the 2,000-year-old legal tradition into modern environmental law in the late 1960s and 1970s. Sax also drafted MEPA.

Those were grim environmental times in the industrial Great Lakes basin. Thick mats of algae blanketed Lake Erie, which was declared dead for lack of oxygen. Pollution clogged rivers, dirtied skies, poisoned birds and fish. The public roared.

Olson was in school and college in the 1960s. He graduated from Traverse City Senior High in 1963, Michigan State University in 1968 and Detroit College of Law in 1970. He then clerked a year for state Supreme Court Justice Thomas Brennan in 1970-71 before starting his law practice in 1972 in his hometown.

"Joe Sax is the pioneer," Olson said. "I guess maybe I'm a scout of some kind for the public trust. I just happened to start practicing law when MEPA was enacted and I used it vigorously the first 10 years of my practice."

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