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Protecting our Water Commons: Interview with Robert Kennedy Jr.

We can be the most powerful protectors of our own sources of water.

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van Gelder: How important is the public trust doctrine in enforcing the idea that the waters are a commons and that ordinary people have a right to it?

Kennedy: There are two ancient laws that underlie all modern environmental laws: One is the nuisance doctrine that essentially says you can use your property any way you want, but if you pollute and it escapes your property and goes onto somebody else’s property, you’re violating the law.

The Waterkeeper Alliance
Robert Kennedy at Waterkeepers Alliance event
Video: Robert Kennedy Jr., who co-founded the Waterkeeper Alliance along with Hudson River fishermen, tells the story of the movement.

The other is the public trust doctrine, which says you can’t do anything that is going to diminish the commons, which includes any property that is not susceptible to private property ownership, like air, water, the fisheries, wetlands, wildlife, the wandering animals, rivers, streams, shorelines, aquifers, underground rivers, etc. Everybody has the right to use the commons, but nobody can use them in a way that diminishes their use and enjoyment by others.

This is ancient law that goes back to Roman times when every citizen—rich or poor, humble or noble, African or European—had a right to cross the beach, throw in a net, and take out a share of the fish. And the emperor himself couldn’t stop them.

The first thing that happens in a tyranny is the privatization of the public trust by powerful entities. So, when Roman law broke down in Europe, the local kings and feudal lords began privatizing public trust assets. For example, in England, King John said the deer—which were an important food source to the poor—could only be hunted by the wealthy; that’s what got him in trouble with Robin Hood. And he privatized all of the fisheries of the Thames and the other rivers of England. This caused the public to rise up and confront him at the Battle of Runnymede, where he was forced to sign the Magna Carta, the first exercise in constitutional democracy. The Magna Carta includes chapters on free access to navigable waters and fisheries.

When we had the revolution in this country, those rights went to the states. So, the constitution of every state says that the people of the state own the fisheries and the waterways of the state. Those ancient rights were basically codified by the Clean Water Act in 1972.

On the first Earth Day, 20 million people, 10 percent of our population, came out in the street, which made Earth Day the largest national demonstration in U.S. history. People were upset about air pollution, but mainly about water pollution, about the Cuyahoga River burning, the Santa Barbara oil spill, and the fact that you couldn’t swim or fish in the Hudson, the Potomac, the Charles, and the major rivers of our country.

van Gelder: What is your assessment of the Barack Obama presidency so far in terms of these issues?

Kennedy: It’s a huge and refreshing sea change from the previous administration. They’re restoring a lot of the damage that the Bush administration did to our environmental statutes, like the Clean Water Act. But, I’d say the biggest single accomplishment is putting the brakes on mountaintop removal.

van Gelder: They’re still issuing permits, aren’t they?

Kennedy: They just issued new standards that are going to make it very difficult for anybody to qualify for another permit.

van Gelder: If you were to advise someone who wanted to protect their own watershed, what would you say would be a good place to start?

Kennedy: I’d say contact the Waterkeepers, and we’ll help you do it. We’re the largest water protection group in the country and probably the world. We have 200 Waterkeepers; each one has a patrol boat; each one has a full-time paid keeper. We litigate on behalf of the community against polluters, and we protect local waterways from people who would injure them. Anybody who’s interested in starting one should contact us, and we’ll show you how to start your own Waterkeeper.


Sarah van Gelder mugSarah van Gelder interviewed Robert Kennedy Jr. for Water Solutions, the Summer 2010 issue of YES! Magazine. Sarah is executive editor for YES! Magazine.

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