Fed Court Okays Ballast Law

A federal judge has upheld the constitutionality of a state law restricting ballast water on
ships entering the Great Lakes. As Rachel Lippmann reports, the ruling clears the way
for other states to take similar action to control the spread of invasive species:

Transcript

A federal judge has upheld the constitutionality of a state law restricting ballast water on
ships entering the Great Lakes. As Rachel Lippmann reports, the ruling clears the way
for other states to take similar action to control the spread of invasive species:


The Michigan law requires ocean-going ships that want to exchange ballast water while
in Michigan ports to clean that water before discharging it into the Great Lakes. The
court rejected arguments from shipping companies that Michigan’s action violated the
Interstate Commerce Clause.


Cameron Davis is the president of the Great Lakes Alliance, which joined the state of
Michigan in the lawsuit. He says the ruling makes it clear states have the right to adopt
their own environmental protections:


“We’re really challenging the other states to quit sitting on the sidelines and start to move
ahead with their own invasive species protections.”


Ohio lawmakers have just proposed similar ballast water law. The bill would also require
Ohio to work with the seven other Great Lakes states and Ontario to develop region-wide
regulations.


For the Environment Report, I’m Rachel Lippmann.

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Defending Rights of Nature

  • Sister Pat Siemen (pictured) leads a seminar on earth jurisprudence at Barry Law School in Orlando, Florida. (Photo by Jennifer Szweda Jordan)

Some lawyers believe it’s time to stand for the rights of nature. They want to represent trees. They want to defend the rights of birds and lakes, and all of nature.
They’re trying to put into practice a theory called earth jurisprudence.
Jennifer Szweda
Jordan has the story:

Transcript

Some lawyers believe it’s time to stand for the rights of nature. They
want to represent trees. They want to defend the rights of birds and
lakes, and all of nature. They’re trying to put into practice a theory
called earth jurisprudence. Jennifer Szweda Jordan has the story:


A law seminar on defending the rights of nature is probably not what
you expect, at least not at first. The start of Roman Catholic Sister
Pat Siemen’s law seminar on earth jurisprudence is unorthodox and Zen
like:


“We’re gonna start with our reflection time. And what I’d like you to
do is close your computers.”


Siemen taps a handheld chime in a classroom at Barry Law School in
Orlando, Florida. She has the law students practice slowing down so
they’ll notice what’s going on around them in nature, and they’ll take
the time to really think about arguing for the rights of nature in the
courtroom.


The legal system doesn’t recognize the rights of nature just yet.
Courts interpret the Constitution as protecting needs and rights of
humans. So only humans, or say, groups of humans such as corporations
can sue. The rights of bunnies and trees aren’t entitled to a voice in
courtrooms. Siemen says the emerging field of earth jurisprudence wants
to change that.


Part of the whole thought of earth jurisprudence is that other beings
actually be given their rights -legislatively – to come into court
through the understanding that someone as a guardian or trustee stands
in their right.


Besides teaching this new area of law, Siemen directs the Center for
Earth Jurisprudence. The center’s just wrapped up its first academic
year. Siemen’s early legal work focused on advocating for people who
were poor, minorities, or otherwise marginalized.


Siemen moved in a different direction when she was influenced by
ecotheologian Thomas Berry. Berry says that if the animals and trees
had a voice, they’d vote humans off the planet. Siemen was shocked:


“I had spent my whole life – at least adult life – ministerially trying
to stand in positions of empowerment of others, and furthering the
rights of others and I had never once really thought about what it
meant to be – whether it would be rivers or endangered species – what
it would mean to have to live and exist totally by the decisions of
humans.”


Siemen was also influenced by University of Southern California Law
School professor Christopher D. Stone. Stone wrote an article entitled
“Should Trees Have Standing?” In 1972, Supreme Court Justice William
Douglass agreed that inanimate objects should have rights. But that
view hasn’t gotten very far in American courtrooms.


The idea that ecosystems should have legal rights is problematic in the
view of free-market advocates. Sam Kazman is General Counsel for the
Competitive Enterprise Institute. He calls the theory of earth
jurisprudence gibberish.


“It is impossible to lay out what is in the best interest of an
ecosystem unless you lay out just what you as someone who owns that
ecosystem, or enjoys it, or appreciates it from a distance, what you
hold important.”


In other words, the owner will decide what’s best for the ecosystem.
Some legal experts believe giving nature rights would take nothing less
than a constitutional amendment.


University of Pittsburgh Law Professor Tom Buchele disagrees. He’s an
environmental lawyer who’s used the standing concept – unsuccessfully –
in arguing for a forest. He says that the Supreme Court could, if it
chose, interpret the constitution as allowing nature to have legal
standing:


“There’s certainly nothing in the constitution that says a case or
controversy has to have a person as the entity. It’s just that current
case law doesn’t do that.”


Buchele and Siemen know changes in court decisions are a long way away.
But if teaching about earth jurisprudence can make tomorrow’s corporate
counsels, real estate lawyers, and governmental officials consider the
trees and the water in their work, Siemen feels she’ll have made some
progress.


And getting law students to think about the rights of nature along with
the rights of humans might be the start of the legal revolution Siemen
wants to see.


For the Environment Report, this is Jennifer Szweda Jordan.

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Supreme Court to Hear Beach Walking Case?

Shoreline property owners are asking the nation’s highest court to reverse a ruling that says the public has the right to walk along the beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick Pluta reports:

Transcript

Shoreline property owners are asking the nation’s highest court to
reverse a ruling that says the public has the right to walk along the
beaches of the Great Lakes. The Great Lakes Radio Consortium’s Rick
Pluta reports:


The property owners are challenging a Michigan Supreme Court
decision. The state court held that the public owns the Great Lakes
beaches from the water to the high water mark. The case was filed by a
woman who was seeking the right to walk along the shoreline of Lake
Huron.


David Powers is an attorney with the property owners group Save Our
Shoreline. He says the Michigan decision rolled back property owners’
rights…


“And so, if the state has taken private property in violation of the
Constitution, the U.S. Supreme Court should be very concerned about
that.”


The other side in the case says the Great Lakes shoreline is such a unique
resource that no one person should be allowed to claim exclusive rights
to it.


There’s no word on when the Supreme Court might make a decision on
taking the case. Lakeshore property rights are being litigated in other
Great Lakes states and whatever the Supreme Court decides to do could
have an effect on those cases.


For the GLRC, this is Rick Pluta.

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Proposals to Limit Great Lakes Water Diversion

  • The Great Lakes from space (Color satellite photo courtesy of NOAA).

Leaders of the states and provinces around the Great Lakes have released two draft agreements to manage the region’s water supply. The proposals’ aim is to block any attempt to divert water from the lakes to drier parts of the world. The Great Lakes Radio Consortium’s Sarah Hulett reports:

Transcript

Leaders of the states and provinces around the Great Lakes have released a draft agreement to
manage the region’s water supply. The proposal’s aim is to block any attempt to divert water
from the lakes to drier parts of the world. The Great Lakes Radio Consortium’s Sarah Hulett
reports:


There’s no immediate threat by outside interests to ship or pump large amounts of Great Lakes
water to the arid Southwest, or to any other part of the world that needs freshwater. And the
draft agreements aim to keep it that way.


There are two documents up for consideration by the public and policy makers. One would be a
binding compact between the states. The other would be a voluntary agreement between the
states and provinces.


Ohio Governor Bob Taft co-chairs the Council of Great Lakes Governors – which released the
plans.


“The whole effort is premised out of our concern that we have a legally enforceable framework,
and a clear standard.”


There’s already a federal law on the books that allows any one Great Lakes governor to veto a
diversion of water from the lakes. But there are concerns about challenges under the U.S.
Constitution, or free trade agreements.


The Great Lakes Charter Annex would require the approval of all eight states for any proposal to
divert more than a million gallons a day out of the basin. Even if a diversion is approved, there’s
a catch: whatever’s taken out of the basin would have to be returned once it’s used.


Noah Hall of the National Wildlife Federation says the practical effect of those requirements
would be a guarantee that the lakes don’t get pilfered by drier parts of the U.S….


“…Where they have growing populations and dwindling supplies of water, and they’ve been
looking at using the Great Lakes to meet their water needs for some time. I think they’ll
obviously see this agreement for what it is, which is a pretty large barrier – perhaps an
insurmountable barrier – to accessing Great Lakes water down the road.”


The agreement would also allow any three states to block withdrawals from within the basin of
more than five million gallons a day. Existing users would be grandfathered in, so only the most
mammoth project would likely come up for consideration – a new power plant, for example.
Hall says that means at most one project a year that would come up for review.


“But what it guards against is the threat of the absolute largest diversions. The massive
withdrawals. The ones that could by themselves harm or impact the Great Lakes, and lower lake
levels.”


Eventually, states would be required to put rules in place for managing smaller withdrawals
within the basin. Even under a best-case scenario, that wouldn’t happen for at least a dozen
years. But Ohio Governor Taft says the end result will be preservation of the lakes for future
generations.


“We have a responsibility as stewards of this precious resource – 20 percent of the world’s fresh
water supply – to protect and preserve it for the benefit of the people within the region, and that
is what the draft agreement is intended to accomplish.”


The plan is up for public review over the next three months. Each Great Lakes state would have
to sign off on the interstate compact. It would also require the approval of Congress. And the
fast-growing arid southwest has more representation in Congress every term.


For the Great Lakes Radio Consortium, I’m Sarah Hulett.

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