The Public Trust Doctrine and the Great Lakes Shores

The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas. Repeatedly, however, owners of land ordering the Great Lakes (i.e., littoral owners),\u27 armed with deeds indicating they own the shore to the water\u27s edge or even lower, have tried to stop members of the public from using their property above the water\u27s edge. The right to exclude others from your property, the littoral owners argue, is one of the most important sticks in the bundle of property ownership rights and should be enforceable on the Great Lakes shores just as anywhere else. Members of the public, on the other hand, claim that such shores are common to all and cannot be the exclusive domain of a private landowner. Raising the public trust doctrine as a shield (or sword), these members of the public contend that the shores of the Great Lakes are held in trust by the state for use by the public, and therefore they have the right to walk along the shore above the water\u27s edge

Distressed Watershed: A Designation To Ease the Algae Crisis in Lake Erie and Beyond

Algae pose a severe problem in many waterbodies nationwide, but the algae crisis is perhaps most acute in Lake Erie. Harmful algal blooms choke the lake every year, causing economic and ecologic damage and threatening public health. Solving the algae crisis in Lake Erie depends on reducing the amount of nutrients entering the lake, especially from agricultural stormwater runoff. Ohio’s recent designation of Lake Erie as “impaired” under the Federal Clean Water Act is a positive step, and the resulting Total Maximum Daily Load (“TMDL”) should be a useful planning tool in the fight against algae. But because the Clean Water Act and TMDLs do not actually regulate nonpoint sources, it is up to state law to address agricultural runoff. This article urges another designation for Lake Erie—as a “distressed watershed” under Ohio’s unique distressed watershed rules. A distressed watershed designation would unleash a suite of binding restrictions specifically aimed at reducing nutrient loading from agricultural nonpoint sources, without the need for any new statute or rulemaking. This article also argues that other states plagued by algae and agricultural nutrient pollution should consider using Ohio’s innovative distressed watershed rules as a model for their own rules. Finally, this article recommends improvements to the distressed watershed rules in Ohio and such other states

The Public Trust Doctrine and the Great Lakes Shores

The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas. Repeatedly, however, owners of land ordering the Great Lakes (i.e., littoral owners),\u27 armed with deeds indicating they own the shore to the water\u27s edge or even lower, have tried to stop members of the public from using their property above the water\u27s edge. The right to exclude others from your property, the littoral owners argue, is one of the most important sticks in the bundle of property ownership rights and should be enforceable on the Great Lakes shores just as anywhere else. Members of the public, on the other hand, claim that such shores are common to all and cannot be the exclusive domain of a private landowner. Raising the public trust doctrine as a shield (or sword), these members of the public contend that the shores of the Great Lakes are held in trust by the state for use by the public, and therefore they have the right to walk along the shore above the water\u27s edge

Re-Exploring Contribution Under RCRA\u27s Imminent Hazard Provisions

Allocation of environmental cleanup costs among responsible parties is a key component of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Indeed, the United States Supreme Court has expressly acknowledged its importance and twice within the past three terms has grappled with how responsible parties may bring CERCLA claims, for contribution or otherwise, to force other responsible parties to share responsibility for cleanup costs at contaminated sites. While some questions remain to be answered around the edges, it is once again fairly clear that a responsible party who is subject to joint and several liability for cleanup costs has a statutory claim under CERCLA by which he can require other responsible parties to bear their equitable shares of the cleanup burden. Thus, because a CERCLA defendant can bring actions for contribution or cost recovery, he may not have to shoulder the entire cleanup burden himself, while other responsible parties avoid liability entirely, just because he had the misfortune of being the one responsible party sued. In addition to providing a whiff of fairness in the Superfund program, the availability of contribution and cost recovery claims by responsible parties is widely credited with promoting settlements and encouraging cleanups of contaminated sites by private parties while preserving governmental resources. The imminent hazard provisions of the Resource Conservation and Recovery Act (RCRA), like CERCLA, are used to force responsible parties to bear the costs of cleaning up contaminated sites. Sections 7003 and 7002(a)(1)(B) authorize the United States and citizens, respectively, to require responsible parties to clean up wastes which may present an imminent and substantial endangerment to health or the environment. Defendants in RCRA imminent hazard cases, like CERCLA defendants, generally are subject to strict, retroactive and joint and several liability. But unlike in CERCLA cases, virtually without exception courts have ruled that defendants in RCRA imminent hazard cases do not have a claim under RCRA, for contribution or otherwise, by which they can seek to force other responsible parties to share the cleanup responsibility

Distressed Watershed: A Designation To Ease the Algae Crisis in Lake Erie and Beyond

Algae pose a severe problem in many waterbodies nationwide, but the algae crisis is perhaps most acute in Lake Erie. Harmful algal blooms choke the lake every year, causing economic and ecologic damage and threatening public health. Solving the algae crisis in Lake Erie depends on reducing the amount of nutrients entering the lake, especially from agricultural stormwater runoff. Ohio’s recent designation of Lake Erie as “impaired” under the Federal Clean Water Act is a positive step, and the resulting Total Maximum Daily Load (“TMDL”) should be a useful planning tool in the fight against algae. But because the Clean Water Act and TMDLs do not actually regulate nonpoint sources, it is up to state law to address agricultural runoff. This article urges another designation for Lake Erie—as a “distressed watershed” under Ohio’s unique distressed watershed rules. A distressed watershed designation would unleash a suite of binding restrictions specifically aimed at reducing nutrient loading from agricultural nonpoint sources, without the need for any new statute or rulemaking. This article also argues that other states plagued by algae and agricultural nutrient pollution should consider using Ohio’s innovative distressed watershed rules as a model for their own rules. Finally, this article recommends improvements to the distressed watershed rules in Ohio and such other states

Solving the Phosphorus Pollution Puzzle: Synthesis and Directions for Future Research

Despite the success of efforts to reduce phosphorus (P) pollution from point sources, P from non-point agricultural sources remains a vexing problem with many U.S. water bodies having impairments. Key to solving the P pollution puzzle is to take stock of progress to date, the puzzle pieces available, and the gaps to be filled. In this paper, we synthesize the state of knowledge on P pollution, discuss the state of existing public programs, and review economists’ contributions to informing P pollution policies. We review the water quality valuation literature, identifying limitations in the linkages to policy-relevant environmental quality metrics. We examine how and why P is used agriculturally, along with recent advances in market-based policy design and field testing. We survey new knowledge in biology and engineering, including improved understanding of the fate and transport of P. In light of recent learning and persistent knowledge gaps, we recommend directions for economic research to add needed pieces to the puzzle of how to protect our water bodies. Puzzle gaps meriting attention include mechanisms to target public funds more effectively in voluntary abatement programs, policy design for emerging mitigation technologies, new ways to implement performance-based policies, means to leverage social norms and behavioral cues, changes in the “pay-the-polluter” paradigm, and application of state-of-the-art evaluation methods to conservation programs. Beyond the realm of public policy lies that of private supply chains, where establishment of environmental standards holds additional promise. Rich research opportunities exist for economists in tandem with biologists, engineers, and other