Water and the Public Trust Doctrine

By John F Earl

These are two speeches I gave before the city council, one in November 03 and the other in Jan. 04 on the relationship of the proposed Poseidon desalination plant, the Public Trust Doctrine and the threat of water privatization under international treaties to our right to have democratic control of our water resources. The first speech was given prior to rejection of the Poseidon EIR, the second following the rejection by the council.

My name is John Earl and I have been a resident of Huntington Beach for twenty years.

I am speaking tonight because I am opposed to the Poseidon Adventure on both environmental and legal grounds.

Others either have or will speak to the environmental issues, so I will speak to the latter.

The Planning Commission has failed to adequately consider the effects of private vs. public ownership of the proposed desalination project within the meaning of the Public Trust Doctrine.

The Public Trust Doctrine is a concept embedded in Western law for centuries—including federal and state environmental laws today.

In short, it means that the ocean is a public resource and must always be protected as such.

That means that any private use of the ocean is not to outweigh public and democratically imposed environmental regulations and public/private use standards.

According to a Coastal Commission analysis, “Review of proposed coastal desalination facilities using seawater from the open ocean, bays, or estuaries must address the question whether the proposal is consistent with public trust values.”

That process has not been sufficiently completed in regards to the proposed Poseidon Adventure because neither the EIR nor the Planning Commission has seriously considered the effects of privatization and commodification of our most precious public trust resource: our water.

The commodification of our ocean and other water resources marks a drastic change in public policy that would endanger our environment and quality of life as well as our democracy.

Water privatization projects around the world have led to terrible failures environmentally, economically, and ethically.

The world’s social, political and environmental landscape is riddled with examples of betrayal of the public trust left behind by other water privatization adventures.

Water privatization has harmed the environment.

It has been inefficient and too expensive.

We are not a third-world-country that is too poor, incompetent or unwilling to find practical, safe and democratic solutions to our future water supply problems.

Water privatization has denied water to the poor in favor of those who can afford to pay.

Water privatization serves corporate profiteers, not the general public.

The privatization of water supply services is a fundamental attack upon the centuries old concept of public trust and common good that recognizes that public control of and equal access to the staff of life, water, is a fundamental human right.

The creators and conductors of the Poseidon Adventure constitute a private for-profit multi-national corporation that will have to put the interests of major stockholders ahead of the interests of the general public in order to have a chance at financial profit.

Water privatization is an attack on our democratic institutions.

Past experience shows clearly that international treaties under NAFTA and Gats give multinational corporations like Poseidon special rights to ignore regulatory powers of government environmental agencies and would probably drastically reduce the ability of the Coastal Commission to protect our cherished and vital coastal natural resources.

The Poseidon Adventure is an attack on the Coastal Act, the Clean Water Act and other environmental protections laws.

It is an attack on the ability and democratic right of Huntington Beach to protect its local environment.

The Poseidon Adventure is nothing less than part of a larger corporate attack on democratically imposed environmental regulations around the world.

As holders of the public trust, this council can’t possibly ignore the threat of water privatization caused by the Poseidon Adventure without violating that public trust.

Some Coastal Commission members and city leaders have said that it’s beyond their power to deal with the grave issues raised by International treaties that were imposed by the major political parties at the behest of their corporate campaign money suppliers.

But if leadership is about anything, it’s about ….. (the remainder of the speech was written in council chambers and I lost that text, but you can see where it's going.)

#2)Good evening honorable mayor and members of the city council.

My name is John Earl and I am a resident of Huntington Beach.

I congratulate the council for denying approval of the Environmental Impact Report for the proposed Poseidon desal plant at your last public meeting.

Your decision to deny the EIR on the basis that it failed to adequately evaluate the proposed plant’s potential threat to the environment was well considered.

But I am saddened by the fact that every member of this council, every member of the city staff and all but one of our planning commissioners put their heads in the sand when it came to considering the most important issue of all: your legal and moral responsibility to abide by the Public Trust Doctrine.

The Public Trust Doctrine is imbedded in centuries of law and in the California constitution.

The Public Trust Doctrine is the general public’s water Bill of Rights.

Adhering to the Public Trust Doctrine, as required by law, as demanded by the California Coastal Commission, requires a public discussion of the private vs. public ownership of public water resources.

The city council ran away from that discussion and in so doing violated the public trust.

The Public Trust Doctrine exists to protect the public’s right to access and democratically control its water supplies for the common good of present and future generations.

The Public Trust Doctrine protects the public’s water supply, period, not the profit margins of corporations or the salaries of CEOs and their highly paid consultants, former members of this council though they may be.

California’s population will grow by an additional 20 million people in the next two decades. With limited water resources and growing population needs, the need for maintaining the Public Trust Doctrine, public accountability and conservation is greater than ever.

At least some council members’ reasons throwing aside the Public Trust Doctrine seem to be based on a feeling of economic and political desperation.

If the desal plant were run by a public agency, it is said, we will lose tax money.

And the city is desperate for cash, so we have no choice.

No discussion of public trust.

No choice.

But let’s not fall for the patronizing and condescending ideologies behind most redevelopment and privatization scams: namely that local governments are like 3rd world countries, and only corporate special interests can help them---by selling back to us the services and resources that are ours to begin with—and that we must surrender our fundamental rights in the process.

The long term consequences of abandoning the Public Trust will be far greater than the tax revenue that we are promised in the short term.

If the council wants more money for essential services, then the next time the Arnold bandwagon comes to town promising to expel special interests and cut taxes, don’t jump on the bandwagon or sit silently.

Instead, stand up to the real special interests who want to sell off our quality of life and or fundamental democratic rights to the highest bidders under the false promise of privatization.

But even if you are a true believer in handing our future over to the financial speculators, even if you feel that we have already done everything we can in California to conserve water and to ensure future water supplies, and if you feel therefore that desalination is the wave of the future and if you feel that financial speculators will care for our water supplies better than the general public, fine. But at least allow the public to be fully informed first about how you plan to abandon your responsibility to uphold the public trust.