Wayne State University Law School1
The Great Lakes are vast. The five lakes that make up the system -- Superior, Michigan, Huron, Erie, and Ontario -- comprise the largest freshwater system on earth, and contain approximately one fifth of the world's water supply. The Great Lakes provide water for consumption, highways for trade and transportation, fuel for power, and natural beauty for recreation. Approximately 35 million people live within the Great Lakes basin, and 23 million depend on the Lakes for their drinking water. The Lakes are more than 750 miles wide and have a surface area greater than 300,000 square miles; there are 25,000 square miles of connected smaller lakes, hundreds of miles of navigable rivers, and 10,000 miles of shoreline. Simply put, the Great Lakes are enormous in their physical size and quantity of water. The enormity of the Great Lakes is matched by a governance and legal regime that can overwhelm attorneys and policymakers. The system is shared and governed by two countries, eight states, two provinces, and numerous Indian tribes and First Nations, in addition to a multitude of American, Canadian, and international agencies, and thousands of local governments. This patchwork of Great Lakes governance has achieved mixed success, as the stressors affecting the Lakes have grown more pronounced. While the size of the Great Lakes necessitates some unique governance structures and legal rules, most of the complexity relates to social challenges, not physical size. From a governance perspective, there is no single "Great Lakes system," nor a discreet "Great Lakes population." Instead, there are many overlapping environmental and natural resources within the Great Lakes system and similarly overlapping populations concerned with specific resources and functions. For example, when managing lake levels to support navigation and shipping, the Great Lakes must be considered in the entirety of their natural and human-altered watershed, and the concerned population includes ten of millions of residents and businesses in both the United States and Canada. Thus, governance of an issue like system-wide lake levels should be (and is) addressed at an appropriately large international scale. However, when managing water withdrawals from an inland trout stream within the Great Lakes watershed, local concerns and interests should play a significant role, and perhaps the relatively local interests warrant smaller-scale governance. The debate over the scale of governance in the Great Lakes comes with some ideological baggage, as advocates bring their own preferences for large central government versus local control. International governance of a large transboundary system like the Great Lakes has some logical appeal, but must be balanced against the interest in subsidiarity, which "expresses a preference for governance at the most local level consistent with achieving government's stated purposes." The debate over the appropriate legal rules for managing and protecting the Great Lakes is equally complex and loaded with diversity. There is of course no single human view towards the "environment," but rather a wide range of values that vary by individual, time, place, and the environmental decision at issue. For persons that rely on the Great Lakes for drinking water, water quality protection would be a priority in the legal regime and applicable laws should be strengthened. However, for persons that rely on the Great Lakes to disperse industrial pollution, availability of water for effluent discharge would be a priority and water quality regulatory laws are an economic burden. To best understand the laws and governance of the Great Lakes, one must be objective in recognizing the diversity of values, interests, and priorities at play, and recognize the fallacy of a single "best" solution for everyone. The diversity of values and interests in the Great Lakes creates a tremendous challenge when using law and governance to address emerging environmental issues. The Great Lakes are beset by pollution from industry, afflicted by eutrophication due to agricultural fertilizers, invaded repeatedly by non-native species, threatened by climate change, and eyed by more arid regions for diversions to ease water shortages in other areas of the country. Myriad legal regimes have arisen to address these challenges within the Great Lakes governance structure. This article aims to explain the law and governance of the Great Lakes within the United States from a Constitutional framework. Part I begins with an overview of the basic principles of a Constitutional democracy and a limited federal government of enumerated powers. It then examines the key federal powers that have shaped Great Lakes governance: Supremacy of federal law and preemption of state law; federal treaty powers enabling the Boundary Waters Treaty and Great Lakes Water Quality Agreements; federal regulation of interstate commerce and the Clean Water Act; federal approval of interstate compacts between Great Lakes states; federal adjudication of interstate disputes over the Chicago Diversion; and Constitutional protection of property rights in light of riparian water use rights in the Great Lakes states. Part II takes a historic look at the Northwest Ordinance of 1787, which established the rules for statehood in the Great Lakes region. The Northwest Ordinance played a part in shaping two key principles for Great Lakes governance. First, it helped establish the equal footing of the states subsequently admitted to the union, which gave those states title to the beds under the Great Lakes. Second, it provided the American foundation for the public trust doctrine in the Great Lakes and connecting waters, which limits the power of government to divest itself of such resources. Finally, Part III describes the rights and responsibilities of tribal governments in the management of Great Lakes water and fisheries. George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 331, 339 (1994). Jessica A. Bielecki, MANAGING RESOURCES WITH INTERSTATE COMPACTS: A PERSPECTIVE FROM THE GREAT LAKES, 14 Buff. Envt’l. L.J. 173, 176 (2007). LEE BOTTS & PAUL MULDOON, EVOLUTION OF THE GREAT LAKES WATER QUALITY AGREEMENT 1 (Michigan State University Press 2005). CLIMATE CHANGE IN THE GREAT LAKES REGION: NAVIGATING AN UNCERTAIN FUTURE, 249-250 (Thomas Dietz & Davild Bidwell eds., 2012). ENVIRONMENTAL PROTECTION AGENCY, The Great Lakes: An Environmental Atlas and Resource Book, Chapter 1 — Introduction: The Great Lakes, http://epa.gov/greatlakes/atlas/glat-ch1.html (last visited November 11, 2013). Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. COLO. L. REV. 405 (2006) MARK SPROULE-JONES, RESTORATION OF THE GREAT LAKES: PROMISES, PRACTICES, PERFORMANCES (2002). Nicholas T. Stack, Note: The Great Lakes Compact and an Ohio Constitutional Amendment: Local Protectionisms and Regional Cooperation, 37 B.C. ENVTL. AFF. L. REV. 493, 494 (2010). ENVIRONMENTAL PROTECTION AGENCY, The Great Lakes: An Environmental Atlas and Resource Book, Chapter 4: The Great Lakes Today — Concerns, http://epa.gov/greatlakes/atlas/glat-ch4.html (last visited November 11, 2013)