What Lakefront Reveals About the Public Trust Doctrine, Standing to Enforce Public Rights, and Possession in Property Law

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As summer began, one of my colleagues introduced readers of this blog to Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). The book explores how Chicago, a city known for commerce, came to have such a splendid public waterfront—its most treasured asset. Tom and I worked on the book for more than 20 years, but apparently we had more that we wanted to say. So, over the past couple of months, we gratefully accepted invitations from three national law blogs to present some reflections based on Lakefront. These posts, though drawing on, are not excerpts from the book, and each of the three series has a strong thematic element or substantive focus.

1. Volokh Conspiracy—The Public Trust Doctrine. Our first series of guest posts, appearing at The Volokh Conspiracy this past June, focused on the public trust doctrine, both in its original American conception (on the Chicago lakefront) and in its development (also there) over more than a century. We explained also that the preservation of Grant Park as an open space, in downtown Chicago, had nothing to do with the public trust doctrine, but stemmed from the public dedication doctrine. Having previously collected these posts, I include the link to that collection and thus to that series, for the sake of completeness here.

2. The Faculty Lounge—Standing to Enforce Public Rights. Our second series last month (July) at The Faculty Lounge concerned standing to enforce public rights. We began by explaining that standing in the law is nearly always discussed in terms of the Supreme Court’s doctrine governing who may sue in federal court consistently with Article III of the Constitution—and that this is unfortunate. For a wider array of standing rules comes into the picture when one considers common-law doctrines governing who may sue to enforce public rights—making Lakefront, which unpacks a century and a half of controversies over various such rights, a valuable resource.

Here is a sort of table of contents for the future reader:

We concluded by urging something of an intermediate rule, given the concerns that we identified in the cases of the most restrictive standing rule (viz., underenforcement of public rights) and the least restrictive standing rule (overenforcement).

3. PrawfsBlawg—Possession vs. Ownership in Property. The third series appeared earlier this month at PrawfsBlawg. Its focus was the role of possession in property. We framed the central question thus: “In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?”

Here is the table of contents, if you will, to this third five-part series:

With respect to the substance of this series, suffice it to say here that, at least on the Chicago lakefront, courts have been reluctant to interfere with possession—and further, in its absence, often have been reluctant to uphold seemingly strong legal claims of property rights. There is, necessarily, much history along the way, including versions of the stories of Cap’n Streeter and of how Jean Baptiste DuSable Lake Shore Drive (as Lake Shore Drive was renamed this summer) came to be—and why it stops where it does.

* * * *

To be sure, my summer was largely spent in administrative work, but I continue very much to believe in the usefulness of blog posts to foster intelligent discussion and engender learning about the law, as I suggested in one additional post that I smuggled into The Faculty Lounge. I hope for a great academic year to come on this blog.

The Wisconsin Supreme Court Slows Down The “Quiet Revolution”

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About four years ago I wrote a blog post titled “The Quiet Revolution in Wisconsin Administrative Law.” My purpose then was to point out an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward The Wisconsin Capitol in Madison, Wis.courts, the legislature, and the governor.” Last week the Wisconsin Supreme Court finally took the field to address that trend, issuing two opinions in companion cases that effectively loosened one of the key new legislative constraints on agency authority. As a result, the pendulum has swung back toward increased agency discretion and clout. The opinions are also important because they continue a recent revival of the Wisconsin public trust doctrine, reversing a slide that I identified in a 2016 blog post.

The court granted review in the two cases  (both captioned Clean Wisconsin v. Wisconsin Department of Natural Resources (2021 WI 71 and 2021 WI 72)) to address one of the issues I focused on in the 2017 post: the scope of Wis. Stat. § 227.10(2m). That statute provides that no agency may implement any “standard,” “requirement,” or permit condition unless the condition has been “explicitly required or explicitly permitted’ by statute or by rule.  The resulting opinions, joined by an unusual mix of justices in a four-vote majority, limit the statute’s influence and slow down the “quiet revolution.”

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Environmental, Social, and Governance Programs Take Center Stage for Businesses

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In a recent blog posting on the Wisconsin State Bar Business Law Section blog, I wrote the following about Environmental, Social, and Governance (ESG) programs:

In connection with ExxonMobil’s annual meeting held on May 26, 2021, three dissident directors nominated by hedge fund Engine No. 1 were elected to ExxonMobil’s board, beating out the incumbents.

Engine No. 1 had proposed the director nominees (along with one other) to help lead ExxonMobil to long-term shareholder value creation, including through “net-zero emissions energy sources and clean energy infrastructure.”[1]

The fact that these dissident directors won the election over the incumbents indicates the increasingly broad shareholder support for clean energy to reduce climate change.

ExxonMobil is not alone in facing an investor challenge to its strategy in favor of a more carbon-neutral strategy. . . .  Continue reading “Environmental, Social, and Governance Programs Take Center Stage for Businesses”

Collecting Posts on the Public Trust Doctrine in Its American Birthplace

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Thank you to my colleague, Professor David A. Strifling, director of Marquette Law School’s Water Law and Policy Initiative, for his generous post a few weeks ago concerning Tom Merrill’s and my new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). The book ranges over almost two centuries and the different stories that led to the Chicago lakefront’s varied but largely integrated and altogether splendid whole. Given these temporal and geographic variations, “the core insight that shapes Kearney and Merrill’s Lakefront”—that “[t]he making of Chicago’s extraordinary landscape along Lake Michigan required law, lots and lots of law” (Professor Hendrik Hartog of Princeton University)—made intuitive sense to us from the beginning. Or at least it did to my coauthor, a noted scholar of property law.

Major areas along the Chicago lakefront (map by Chicago CartoGraphics): Figure 0.2 from Lakefront: Public Trust and Private Rights in Chicago (Cornell, 2021)

Yet as our book’s title suggests, however much other law has been involved, the public trust doctrine has been at the forefront of lakefront controversies, at least since the Supreme Court of the United States used the Lake Front Case (more formally known as Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892)) to announce the American experiment with the doctrine. So Professor Merrill and I took a guest-blogging opportunity at the Volokh Conspiracy this past week to focus on the public trust doctrine. Here are links to our series of posts:

You can find us a month or so from now guest-blogging at The Faculty Lounge, where we expect to consider the rules that govern—or might govern—who has standing to raise the different sorts of legal claims whose disposition has helped shape the Chicago lakefront. Each of these rules is in some way problematic, and differences among them have had notable effects on what a resident or tourist today finds on the lakefront—and what he or she does not. “[L]ots and lots of law,” it has been said.

Chicago’s Lakefront: The Rise of the Public Trust Doctrine (and Much More)

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Urbs in Horto”— city in a garden—is the motto Chicago’s founders chose upon the city’s incorporation on March 4, 1837. At the time, this was more of a vision than a statement of fact, as the city had few public parks then, and preserving its existing open spaces seemed uncertain at best. Given the industrial waterfronts in many other large cities, it is a marvel that Chicagoans made that early vision a reality, at least along the water, by creating the city’s magnificent lakefront parks and protecting open space over nearly two centuries. How did it happen, and what are the lessons for urban development more generally? The definitive account is provided in Lakefront, a remarkable new book twenty years in the making, coauthored by Marquette Law School Dean (and Chicago native) Joseph D. Kearney and Columbia University’s Thomas W. Merrill.

Lakefront is, at its core, a story about Chicago and the development of its world-renowned lakefront. But Kearney and Merrill also make a significant contribution in untangling the American development of the public trust doctrine, which has been called “unquestionably one of the most important elements of U.S. natural resources law.”[1] The Supreme Court has recognized the doctrine’s ancient origin and its roots in Roman law.[2] Scholars have traced it to the Code of Justinian. Today the doctrine is generally thought to protect and preserve certain natural resources of a “special character,” through a perpetual trust intended to prevent the unimpeded exercise of private rights upon them. But clarifying the doctrine’s operational reach has proven difficult, and it has evolved into many different strains of varying strength primarily governed by state common law. However, all agree that Justice Stephen Field’s 1892 opinion for the U.S. Supreme Court in Illinois Central Railroad Co. v. Illinois was the moment at which the doctrine became a prominent feature of American law. Lakefront provides groundbreaking new details and a blow-by-blow account of how the case originated from the battles between public and private rights on the Chicago lakefront.

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Marquette’s presence at the Global Water Center helps Milwaukee lead in Water Innovation

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Less than a mile away from the Law School, some of the country’s most important work is taking place at the Global Water Center, led by the Water Council. Water may seem like a basic right to most Americans, but across the globe, it is often a precious commodity. This will soon become a new reality in the water rich Midwest, as the demand on area water resources leads to an increasingly critical supply. The U.S. Geological Survey reported that pumping of groundwater in the Chicago-Milwaukee area from 1864 to 1980, has lowered groundwater levels by as much as 900 feet. Below is a map that illuminates the critical depletion affecting U.S. ground water supplies.Groundwater depletion in the U.S.

From Groundwater Depletion in the United States (1900-2008), USGS Scientific Investigations Report 2013-5079.

Facing the critical groundwater depletion taking place across the country over the last 100 years, Milwaukee non-profit, the Water Council, is rising to meet the challenge. The Water Council is dedicated to solving serious global water challenges by supporting innovation in freshwater technology and driving new solutions to a world that increasingly needs them. The Council has led the way through impressive collaboration—connecting 238 water technology businesses and a leadership network of 200 members from around the world. This expertise has included input from several Marquette University departments, including Marquette University Law School.

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Congratulations to Marquette’s Environmental Law Moot Court Team

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I intended to write this post in March, upon returning from Spring Break, but 2020 got in the way. Better late than never, as they say; and I would be remiss not to recognize the excellent work of our 2019-20 Environmental Law Moot Court team, consisting of Caleb Tomaszewski and Adam Vanderheyden. The team (pictured here along with coach Dennis Grzezinski) competed in the 2020 National Environmental Law Moot Court Photo of the 2020 environmental law moot court team with a coach.Competition hosted by Pace University in White Plains, New York. Caleb and Adam advanced out of the preliminary rounds to the quarterfinals, where they were narrowly defeated. The team received high praise from several judges, but Caleb reported that the most gratifying aspect was “hearing the judges say that we are ready to advocate in real life.” I appreciate the significant contributions of Dennis Grzezinski, Gabe Johnson-Karp, and Professor Alex Lemann, who coached the team with me. But most of all, bravo to Caleb and Adam on achieving the best placement in years for the Law School in the National Environmental Law Moot Court Competition.

AG Kaul, WDNR Reverse Slide of Wisconsin’s Public Trust Doctrine

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An important shift in Wisconsin water policy has taken place in recent weeks, one that will likely have quantitative effects on Wisconsin water quality. It relates to the relative influence of the public trust doctrine in the state. On several occasions, I have written in this space about the doctrine’s apparently declining influence in Wisconsin. The public trust doctrine is generally taken to mean that a state must act as “trustee” of certain natural resources, particularly the navigable waters of the state, and manage them for the trust beneficiaries—its people.

Operationalizing those general terms has been difficult and has proceeded in fits and starts. For present purposes I will focus on the 2011 Wisconsin Supreme Court decision in Lake Beulah Management District v. Wisconsin Department of Natural Resources, (WNDR) concluding that the public trust doctrine gave WDNR “the authority and a general duty to consider whether a proposed high capacity well may harm [other] waters of the state” via water level drawdown and other potential impacts. In Wisconsin, high capacity wells (HCW) are statutorily defined as wells with the capacity to pump over 100,000 gallons of water per day. The court further held that when considering HCW applications WDNR had the authority to “deny a permit application or include conditions in a well permit” to prevent the harm to other nearby waters.

Around the same time, a new statute arguably undercut that same authority. While the case was before the court the Legislature enacted 2011 Wisconsin Act 21, creating Wisconsin Statute § 227.10(2m). The statute provides that “[n]o agency may implement or enforce any standard, requirement, or threshold, including a term or condition of any license issued by the agency, unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule . . . .” For several years, uncertainty persisted over the tension between the Supreme Court opinion and the statute because the WDNR’s public trust authority is not “explicitly” stated in the statutes or in WDNR’s administrative rules.

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Enforcing Environmental Laws During The Pandemic

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According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most The Environmental Protection Agency logoprominently, avoiding penalties) outweigh the expected costs of compliance. Theoretically, economists say, there is an optimum level of enforcement where expected sanctions equal expected harm, taking into account the probability that violations will be detected.

Yet the actual level of enforcement of the environmental laws is never optimal, even at the best of times. Enforcement agencies such as the United States Environmental Protection Agency (EPA) and its state counterparts like the Wisconsin Department of Natural Resources (DNR) have imperfect information about ongoing violations. They are not omniscient. And even if they had perfect information, there are often many more potential enforcement targets than can be pursued with limited agency resources. Enforcement, of course, is part of a broad mix of agency responsibilities that also includes rulemaking, standard setting, monitoring, and many other activities. Finally, political leaders may appoint agency heads who drive the pursuit of more or less than the optimal enforcement level.

Enter the pandemic. It adds a new layer of complexity, to understate the matter, in that enforcement agencies must take several new and highly important factors into account, such as the safety of agency personnel and the economic damage some regulated entities are experiencing. Staff who might normally be inspecting permitted facilities or investigating reported violations may be sick, quarantined, or at the very least, working from home. These factors have led some agencies to relax enforcement activities, as discussed in more detail below. Even if they are presumed to be well-meaning, such policies may worsen the situation in communities already disadvantaged by pollution levels that seriously impact public health. In turn, this may expose those communities to additional risks during or following the pandemic. Continue reading “Enforcing Environmental Laws During The Pandemic”

Real-time Control of Stormwater Management Systems

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Earlier this week the Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, a paper I co-authored with Dr. Walter McDonald of the Department of Civil, Construction and Environmental Engineering (CCEE) in Marquette’s College of Engineering; Stormwater flowing into a grateJoe Naughton, a 2020 Sea Grant Knauss Fellow at the National Oceanic and Atmospheric Administration; and Hannah Hathaway, a member of the Law School’s Class of 2020. Another faculty colleague, Dr. Tony Parolari of the CCEE department, participated in the underlying research grant that resulted in the paper. This kind of work is part of our core mission: the Marquette University Water Law and Policy Initiative seeks, among other things, to employ an interdisciplinary approach, and to pursue opportunities for information exchange and collaboration within and outside Marquette University.

The following excerpt describes the work. The full article is freely available at the above link.

Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors.  These changes have increasingly stressed existing “static” stormwater management systems such as pipe networks, retention ponds, and detention ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors may require innovative solutions such as real time control (RTC) or “dynamic” stormwater management systems.  Continue reading “Real-time Control of Stormwater Management Systems”

COVID-19 and Water

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Without doubt, times are tough. The seemingly inexorable spread of the COVID-19 pandemic has left many of us desperate for good news. And make no mistake, there is some out there. First, it’s heartening to see the An image of the coronavirusincreased appreciation for those in the public health sector, and also for the unsung heroes of the war against COVID-19: grocery store personnel, garbage collectors, truckers, janitors, pharmacy clerks, postal workers, package deliverers, and others who we now realize are truly essential to a functioning modern society. Let me add one more group of people to that list: utility workers who keep our power on, our access to the internet active, and our clean water flowing. For example, to ensure a reliable water supply, some water treatment professionals are “sheltering in place” at a water treatment facility for the next three weeks. Others, right here in Wisconsin, are working twelve hour shifts in complete isolation to ensure that critical machinery remains operational.

That leads me to my second bit of good news: according to the Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC), our water supply is not threatened by COVID-19. Like most viruses, it is “particularly susceptible to disinfection,” a standard process at wastewater treatment plants. It seems appropriate to be grateful for this, given that Sunday was World Water Day. Imagine how terrible this crisis would become if we could not trust our drinking water. Continue reading “COVID-19 and Water”

A Retrospective on the “Year of Clean Drinking Water”

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2019 was a memorable year for those interested in Wisconsin’s water resources. During his January 2019 “State of the State” address, Governor Tony Evers declared it the “Year of Clean Drinking Water in Wisconsin,” making water a primary focus of his first year in office. Around the same time, Assembly Speaker Robin Vos announced the creation of a water quality task force to study water contamination issues. Shortly thereafter, I An exterior photo of the Wisconsin State Capitol.wrote a post describing a shorthand “top ten” list of issues for the administration and the task force to consider. In no particular order, my list included lead laterals, PFAS and other emerging contaminants, nutrient pollution, groundwater contamination and private wells, Great Lakes diversions, CAFO regulation, the DNR, infrastructure, high capacity wells and groundwater drawdown, and wetlands protection.

But now 2020 has arrived. What were the tangible results of the “Year of Clean Drinking Water”? Many promising efforts are underway and the state has made significant progress in some areas, but much remains to be done. The Governor’s declaration and the Speaker’s task force brought much needed public attention to water quality issues, but it would be a shame if that intense focus fades with the turning of the calendar. Governor Evers recognizes this, admitting in a recent interview that he knows the work will take much more than a year. And he expects Wisconsinites to support it in the longer term: “People like to have clean drinking water,” he said. “Who doesn’t want it? Who doesn’t need it?” Yet in his 2020 “State of the State” address Evers mentioned water only once, a late reference to “getting PFAS out of our water” as part of a list of things yet to be accomplished.

Here are the specifics of what happened last year:

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