By Skip Pruss
In 1970, over 20 million people participated in the nation’s first Earth Day. Pioneered by Wisconsin U.S. Senator Gaylord Nelson, Earth Day was one of the first of what became to be known as environmental teach-ins. Senator Nelson sought to confront the growing list of environmental issues facing the nation and the world by galvanizing public interest and elevating the level of discourse on threats to our air, land, water, lakes, rivers, and oceans.
The 1970s witnessed the enactment of an array of state and federal legislation aimed at dealing with a growing list of environmental impairments. The new regulatory architecture imposed limitations on emissions to air and discharges to water, controlled the management and disposal of wastes, and reduced the release of hazardous substances into the environment.
Among the most notable of these new laws, was the Michigan Environmental Protection Act—known to us Michiganders as “MEPA.” MEPA took a dramatically different approach to environmental protection.
While federal statutes like the Clean Water Act and the Clean Air Act took aim by ratcheting down allowable levels of hazardous materials discharged into the environment, MEPA empowered “any person” to bring an action in court “for the protection of the air, water, and other natural resources and the public trust in these resources.”
Under MEPA, citizens have the power to use the courts to protect local natural features “from pollution, impairment, or destruction.” If a citizen is able to show that an activity will pollute, impair, or destroy a natural resource, then the proponent of the activity must either rebut the evidence or demonstrate that there is “no feasible and prudent alternative.”
The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now.
MEPA also requires a determination whether a proposed project “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
In essence, MEPA requires that a proposed activity that may impair the environment be analyzed to determine not only whether there is a more environmentally benign way to accomplish the proposed activity, but also whether the effects of the activity are consistent with the “paramount” value of protecting public health and the environment.
Applying MEPA to Our Greatest Environmental Challenges
One of the leading champions and practitioners of MEPA has been FLOW’s founder, Jim Olson. For 50 years, he has put MEPA to work in the courts and administrative processes, defending wetlands, streams, flora and fauna, and human health. Jim has adeptly used MEPA to protect the Great Lakes and its tributary rivers and streams, vindicate indigenous treaty fishing rights, and limit Nestlé’s withdrawal of Michigan groundwater.
For the first time, at the urging of FLOW, a state agency has acknowledged that MEPA applies to activities that result in large-scale greenhouse gas emissions. In reviewing Enbridge Energy’s request to the Michigan Public Service Commission (MPSC) for authority to construct a tunnel to house a replacement for the Line 5 pipelines that currently cross the Straits of Mackinac, the MPSC ruled that not only is an analysis under MEPA required, the analysis must include a review of the greenhouse gas “pollution” attributable to the hydrocarbons transported within the pipelines.
Tar sand oil production, Fort McMurray, CA Photo by Environmental Defence Canada.
The MPSC agreed with FLOW’s arguments that MEPA is supplementary to other existing regulatory and administrative procedures, and that MEPA requires consideration of the likely environmental effects of the proposed tunnel project, including the cumulative effects of greenhouse gasses on climate change.
FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.
FLOW has consistently argued that all major permitting decisions undertaken by state and local governmental authorities that involve activities that may impair natural resources also must undergo a separate review under MEPA. Without such a thorough analytical review, permitting decisions are incomplete and invalid.
Inherent in MEPA is the affirmation that our air, water, and natural features are irreplaceable and that maintaining the functionality, vitality, and resilience of natural systems is essential to our well-being and that of future generations. The rapidly evolving science of ecological economics affirms that natural systems provide trillions of dollars of economic value that are lost to future generations when natural resources are impaired or destroyed.
The Michigan Environmental Protection Act’s use as an essential legal tool has never been more important or in greater legal need than right now. FLOW will be relentless in our efforts to ensure that MEPA is properly invoked to protect the public trust in all our vital natural resources.
