Author: FLOW Editor

MPSC: Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac Must Undergo Full and Vigorous Public Review

MPSC Chairman Sally A. Talberg

Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.


FLOW E.D. Liz Kirkwood

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.

“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this project. With society’s urgent need to  to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”


See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:

Michigan’s Lake Erie Cleanup Plan Falls Short

By Dave Dempsey

FLOW senior advisor

A draft plan prepared by state government agencies to reduce phosphorus pollution and algae blooms in Michigan-controlled waters of Lake Erie will not deliver on the state’s commitments, FLOW said in comments submitted to the state this month.

Authored by the Department of Environment, Great Lakes and Energy (EGLE) and the Michigan Department of Agriculture and Rural Development (MDARD), the draft Adaptive Management Plan for Lake Erie targets phosphorus released primarily by farms in the form of excess fertilizer and animal waste runoff.  It relies too much on programs subsidizing conservation practices by individual farms that have been tried and failed before.  The plan also is vague about how the state will refine and recalibrate state actions based on monitoring results.

The waters of western Lake Erie belonging to Michigan, Ohio, and Ontario have been plagued by algae blooms for the last 15 years, interfering with recreation and endangering human health. In 2014, almost 500,000 customers of the public water supply of Toledo and surrounding areas, including thousands in Michigan, whose water is drawn from the lake, were advised not to drink, touch, cook with, or brush their teeth with the water for almost three days because of toxic organisms known as cyanobacteria that resulted from an algae bloom. Worried citizens flocked to stores within a 50-mile radius to stock up on bottled water and the National Guard was called in to assist with bottled water delivery. In the years since, blooms have persisted in the summer months, when sunlight and warm water temperatures interact with phosphorus.

Despite the chronic phosphorus problem, Michigan’s plan, which aims to reduce phosphorus loadings to Lake Erie by a total of 40% from 2014 levels, counts too much on voluntary farm practices instead of enforceable measures. By contrast, Ohio has committed to mandatory measures in the form of a Total Maximum Daily Load (TMDL) process under the Clean Water Act.

“Ohio has recognized it is time for a new, transparent, and more promising approach through the TMDL process. It is regrettable that the State of Michigan fails to recognize this reality,” FLOW wrote in formal comments on the draft plan.

A second shortcoming of the draft plan is that it is more a “plan to plan” than an actual adaptive management plan. It describes how the agencies will work over time to perform such a plan but does not provide a full Lake Erie phosphorus reduction blueprint that can then be updated through the adaptive management process.

The plan does not allocate phosphorus reductions or phosphorus usage within each major watershed specific to biosolids, manure, and fertilizers. It does not assign ratios of phosphorus loadings to Lake Erie to applied phosphorus in biosolids, manure, and fertilizers, nor how those ratios will change as a result of the application of various land management practices.

A third shortcoming is the draft plan’s heavy reliance on the Michigan Agriculture Environmental Assurance Program (MAEAP) to achieve phosphorus-loading reductions from agricultural sources.  MAEAP is deeply flawed. It provides a shield against compliance and enforcement of environmental laws by EGLE without sufficient assurance of effort and actual compliance with environmental standards by farm operators. Enrollment in the program is not, and has not proven to be, an indicator of improved environmental performance.

Perhaps the most serious shortcoming of the plan is its failure to respect and follow the legal framework and duties imposed on the State under art. 4, sec. 52 of the Michigan Constitution, the Michigan Environmental Protection Act, and the common law public trust doctrine. The public trust doctrine imposes a solemn and affirmative duty on the state to protect navigable waters, bottomlands, habitat, and fish and to prevent impairment or subordination of the superior public trust rights for fishing, boating, swimming, and sustenance, including drinking water and bathing. In light of the state’s finding that Lake Erie is “impaired,” the failure to recognize and implement an action plan to take actions to immediately prevent or minimize nutrient loading and impairment of these waters, natural resources, and public trust rights constitutes a per se violation of the MEPA and this public trust.   

The state has not set a deadline for a final version of the plan, but it is expected to be completed before the end of 2020.

High Water, Public Rights, and Michigan Shoreland Protection

Facing the Reality of a Climate Change along the Great Lakes

Beach erosion photo by Roger Cargill

By Jim Olson

Water levels in Lake Huron and Lake Michigan won’t drop anytime soon. Private waterfront homeowners rush to save their homes from loss. Citizens seek to preserve their public right to a walkable beach along the shore below the natural high water mark, and the State of Michigan and municipalities struggle to save valuable infrastructure for water, sewage, roads, dams, parks, and recreation. (See FLOW’s continuing high-water coverage here).

One of the most controversial struggles pits landowners on the Great Lakes against the public who flock to the beaches for access for fishing, swimming, and strolling along the shore. Landowners rush to gain permits from the Department of Environment, Great Lakes, and Energy (EGLE) under emergency laws to install seawalls or riprap. This hard armoring inevitably impairs, if not blocks, beach-walking and erodes beach and property next door, kicking off a domino effect of one protective structure after another.

Ironically, both landowners and the public suffer losses to rights to use and enjoy these Great Lakes and their shores. No one wins with high water. The erosion of beach and bluffs by wave action is inevitable, and the shore becomes impassable either from obstruction or topographical and geographical features—skilled rock climbers aside, I’ve yet to see a private landowner build a dock or citizen walk the shore of a precipitous clay bank or cliff. 

It is time for all of us to face reality—the new normal.

Public Trust Doctrine Establishes and Prioritizes Public Rights to Access Water

Conflicts in this country over the rights of private waterfront landowners and the public have been around since the American Revolution. When Benjamin Mundy took the oysters from the beds Robert Arnold had prepared in the mudflats of New Jersey, the dispute soon ended up in the state’s Supreme Court. In 1821, following common law and custom from England with roots in the Magna Carta, the court ruled that Mundy had a right to walk the bottomlands and gather the oysters, because the waters and bottomlands below the high water mark were held in trust for the public for access, fishing, navigation and sustenance. Not long after, our state courts and the United States Supreme Court recognized the public trust doctrine in all navigable waters.

In 1892, the U.S. Supreme Court held that on joining the Union, a state as sovereign takes title in trust for the public to all of the navigable waters and bottomlands to the ordinary or natural high water mark.[1] As a result, the Court ruled that this trust—known as the public trust doctrine—extended to the navigable waters of the Great Lakes, including Lake Michigan and Lake Huron, scientifically a single hydrologic lake system. Michigan follows this same public trust doctrine.[2]

Under the public trust doctrine, the rights of the public are exclusive and legally superior to private shore owners provided the public use remains below the high water mark and does not interfere with the private landowner’s riparian rights for mooring and docking boats, navigation, and reasonable use of the water in connection with the upland.[3] These public rights include access, navigation, fishing, boating, swimming, and beachwalking,[4] but these rights do not include picnicking and sunbathing; these occupancy type uses must take place at road ends or public beaches. The public trust is perpetual, meaning it extends to future generations, and that the government has a duty to protect the trust and these public rights from interference or impairment by private owners or others. The state title is exclusive to the natural or ordinary highwater mark, and the public trust and public rights cannot be repealed by a legislature because they are embedded in the common law.[5]

But if Mundy had taken anything from Arnold’s land above the normal or ordinary high water mark above the mudflats, he would have been liable for trespass. The shore and land above the natural or ordinary high water mark belongs exclusively to the owner, and the owner has the exclusive rights attached to the soil for docking, mooring, and enjoying access for her or his boats to the navigable waters. Below this high water mark, the public has every right to enjoy protected public trust uses without interference from the owner. It’s often said that the riparian and public rights are to be exercised side-by-side—more aptly put, where possible a principle of accommodation between the public and riparian owners over the use of the common zone between the water’s edge and the high water mark.

It should also be noted that the owner’s and public trust rights often are on the same side against threats from others or natural causes—low and high waters are a case in point. Both the public and private landowners lose shoreline and the enjoyment of public and private rights. But the alignment is not always harmonious. During low water, the beach is wide, in some instances hundreds of feet, so there is little conflict, except for the threat of large-scale diversions of water out of Lakes Michigan and Huron, now prohibited by the Great Lakes Compact. 

The Invisible Line Between Private Shoreline and Public Bottomlands

In the last several months, Michigan legislators passed and Governor Whitmer signed amendments to the Shoreland Protection Act (“SPA”)[6] that provide emergency relief for homeowners so they can quickly obtain permits to install seawalls, sheets of steel, or riprap (large, rounded stones) to curtail the effects of unprecedented high water attributable to climate change.[7]  However, this law regulates and allows these structures on the shore above the high water mark, not below it, and requires a consideration of impacts on the public trust and neighboring riparian landowners’ shore.

If a landowner wants to install structures below the high water mark, another law applies, the Great Lakes Submerged Lands Act (“GLSA”),[8] which codifies the protection of waters, bottomlands, and public rights under the public trust doctrine. Under the GLSLA, except for seasonal docks and overnight mooring, any permanent occupancy, structure, or alteration of these public trust waters and bottomlands is prohibited except where a riparian owner applies for and obtains authorization based on a showing that the proposed conduct falls within one of two narrow exceptions: (1) the proposed use promotes an improvement of the public trust, such as a public fishing dock or marina, or habitat work; or (2) there is no impairment or interference with the public trust or public trust uses such as, fishing, swimming, or beach-walking. The GLSLA also requires notice and in some instances the consent of adjacent riparian landowners and the local government where the land and waters in question are located.

The conflicts between the riparian owners under the SPA and the public under the public trust and GLSLA are readily apparent. Owners face significant financial and property loss, but the structures block public trust rights and exacerbate erosion and loss of beach on adjacent properties, triggering a domino effect of one owner after another being forced to build intrusive protective structures, casting the damage on to others, the shore, and public trust uses and natural resources. 

The right to walk a beach does not end if riprap or a seawall is installed, but it creates a dilemma—walk over the riprap or through the water. If you walk above the normal high water mark, as long as there is immediate evidence of the presence of water or wave action on the riprap or beach in front of it, you are likely protected by the public trust doctrine, and not trespassing, although it is not necessarily safe. If it is impassable, there are two choices: turn back or walk above the seawall or riprap to avoid the danger. In the common law, a person’s trespass is sometimes justified if danger is imminent and the trespass is necessary to avoid it—sometimes called the “choice of evils” defense. But the choice may not avoid a conflict with the owner, should a landowner contest your right to do so. So, if you can ask permission, do so; if not, it’s a matter of good judgment.

It is not only members of the public who have a right to oppose interference with the use of the public trust beach area. An adjacent riparian landowner may also oppose a structure that will worsen the erosion to her or his property. Quite often, adjacent riparians will oppose a seawall or riprap not only to protect their property, but to also preserve their own rights as members of the public to enjoy walking along the beach. 

The State of Michigan’s Dilemma during High Water

Given these competing or conflicting positions, the state often faces difficult choices between helping landowners and protecting the public and trust resources. Because the public trust rights are superior, the state must first assure that its choice will do no harm to the public trust; second, the state must determine whether the proposed seawall, riprap, or other structure meets the permitting requirements of the SPA and GLSLA, described above. Generally, this means the structure cannot interfere with or impair the public trust and neighboring riparian property. If there are alternatives to the proposed intervention or interference, the landower would have to implement the alternative so long as it is not cost prohibitive. If possible, the state should seek to accommodate the landowner’s need to protect a home so long as the impairment is kept to a minimum and public trust or public rights are not substantially impaired. In some instances, a well-designed riprap installation using round, smooth stones work best because the multiple curved surfaces dissipate the energy and lessen erosive effects.

Over the long-term, the reality is that high water erodes shoreline along Lake Michigan and Lake Huron year after year. Bluffs recede over time (although not so much in the dry, low water level years), significantly during years of high water, and dramatically during the unprecedented all-time high water levels in 2020 and the foreseeable future. We should also be aware that everyone in Michigan and along Lakes Huron and Michigan faces major damage and loss. So, the best approach is one of balancing and accommodation, if protective measures can be made that do not impair or significantly interfere with public trust resources and rights. This means communication, common sense, and compliance with the SPA, GLSLA, and the paramount rights of the public, including future generations. Communication can be critical for the landowner, because consent from adjacent riparian landowners and local governments may be required. This requires the government, landowners, and the public to understand that the integrity of our shores, beaches, lakebed, habitat, water quality, and fishing come first. In some cases, it may mean moving a home back from the bluff. In others it may mean accepting some riprap that provides necessary protection and minimizes loss of neighboring properties and interference with public passage. 

The decision in each case will depend on the circumstances, awareness, and involvement of all neighbors and the public, keeping in mind the overarching public trust principles and the topographical and geographical conditions at each location. In times of high water, if the public keeps their feet in the water or wet the zone created from wave action, the exercise of public trust rights generally will be lawful.  As noted at the outset, not every shoreline during high water is safe for any activity. I have yet to see anyone beach-walk the face of a rocky cliff no matter where the water level is. Ultimately, the exercise of public trust rights always turns on personal judgment that it is safe to walk the beach. The same is true for riparian owners.

Climate Change and High Water are the New Reality

High water levels like those in 2020 mean change, now and for the foreseeable future. And, high water levels are not just about beach walking or building seawalls and riprap. Water levels affect parks, breakwalls and marinas, water-dependent or shoreline businesses, near shore or lowland private and community septic and sewage systems, water sources, roads, bridges, dams like the recent failure in Midland County, drainage and storm-water systems, wetlands and floodplains, land use, zoning, and capital expenditures. Existing infrastructure is obsolete, both because of age or failure and the fact that it was designed in an era where rainfall or precipitation was considered stable. Most drainage, erosion measures, septic and sewage systems, and structures are designed for 25 to 100-year back-to-back storm events. As experience taught us with the dam failure in Midland a few weeks ago, the road and bridge damage in the western Upper Peninsula last year, and Manistee County a few years back, precipitation or storm events previously thought to occur every 500 or 1000 years have become far more frequent and intense. 

Some massive losses will be unavoidable, but others can be minimized or even avoided. Federal, state, and local governments must enact laws and ordinances that provide for smart planning, land use, water protection, health, and safety—in short, government officials and all of us must accept the reality, and work together to shift to a new paradigm of what we can and cannot do because of the uncertainty of unpredictable extreme weather caused by climate change and natural forces. 

We must seek resiliency, for ourselves, others, communities, and the natural world on which our life depends. We must make wise choices about capital expenditures to avoid wasted resources and continuing damage. For example, wetlands that prevent flooding, provide critical habitat for wildlife, and recharge clean water into groundwater or lakes and streams will disappear and become submerged. Floodplains will become wetlands. Lowlands will become floodplains. Or, closer to home on Lakes Huron and Michigan, the government, property owners, and the public can work together to find the best long-term resilient actions through shared cost and responsibility.

We Forget that the Water Cycle and the Life Cycle Are One

If we are willing to face the reality and build resilience into our lives, not unlike COVID-19 or the movement for racial equality that has erupted once more in the last few weeks, we will make it, maybe not with the same expectations, but with greater security of life, property, community, and economy—and with the peace that finally we will face the new reality. This shift had been needed for a long time. Let’s not only protect the public trust in our beaches; let’s protect and respect the entire water cycle as a public trust. 

“We forget that the water cycle and the life cycle are one,” Jacques Cousteau famously said. And, at the same time, let’s restore the public trust in government at all levels and in ourselves! Let’s follow the good that can come out of this, no matter where we live or who we are.

Footnotes

[1] Illinois Central Railroad v Illinois, 146 U.S. 387 (1892).

[2] Obrecht v National Gypsum Co., 361 Mich 399 (1960).

[3] Glass v Goeckel, 473 Mich 667 (2005).

[4] Id.; Gunderson v State of Indiana, 67 N.E.3d 1050 (2018).

[5] Id.

[6] Part 323, NREPA, MCL 324.32301 et seq.; see https://www.michigan.gov/egle/0,9429,7-135-3313_3677_3700—,00.html

[7] Id.

[8] Part 325, NREPA, MCL 324.32501 et seq.

Shutdown of Damaged Line 5 Must Be Permanent

enbridges-line-5-under-the-straits-of-mackinac-4f9997139d321d60

Gov. Whitmer, State of Michigan Should Put an End to Enbridge’s Damaged and Decaying Oil Pipeline in the Great Lakes to Protect Drinking Water, Economy, and Way of Life

The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“In response to Enbridge’s revelation late Thursday that it had to perform an emergency shutdown of its 67-year-old Line 5 oil pipelines in the Straits of Mackinac because the infrastructure “has incurred significant damage,” according to the State of Michigan, FLOW is calling on the administration of Gov. Gretchen Whitmer to make the shutdown permanent to protect the Great Lakes, which is the drinking water source for half of all Michigan residents, the economic engine for the Great Lakes State, and the essence of a way of life here.

We support Gov. Whitmer’s demand for immediate and full disclosure of Line 5’s condition from Enbridge to address this clear and present danger to our lakes. During a global pandemic and a deep economic downturn when fresh water is critical to our survival and comeback, the Whitmer administration must take affirmative action to permanently shut down Line 5 and avoid an inevitable catastrophic oil spill in our Great Lakes.”

Background: The Governor’s demand of Enbridge about Line 5 comes on the heels of disturbing revelations about Canadian-based Enbridge’s safety practices:

  • News broke today that Enbridge has been fined $6.7 million for violating court orders on pipeline safety that put people and our drinking water at risk. 
  • On June 3, the Michigan Attorney General’s office argued in front of the Michigan Court of Appeals that Line 5 in the Straits is an “environmental time bomb.”
  • Enbridge revealed in late May that the protective coating on the Line 5 pipeline had worn away in several spots, leaving bare metal exposed to decay.
  • Since 2013, FLOW has filed legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating illegally and risking the public’s water. 

 

Environmental Protection Must Not be Sacrificed During Pandemic

By Zoe Gum

Milliken Policy Intern

Using the current COVID-19 situation as a pretense, the Trump Administration has stopped enforcing many Environmental Protection Agency (EPA) safeguards. This has left individual states with the additional responsibility to sustain environmental protection. Many companies and corporations have recently requested that state regulators be lenient on environmental regulations that require them to test and monitor pollution, claiming that the pandemic has interfered with their ability to comply with preexisting regulations.

This has left many citizens fearful that, if states grant companies leniency in their pollution monitoring and testing practices, then they will be left vulnerable to unknown amounts of pollution. It is especially concerning given tentative scientific findings that exposure to air pollutants increases vulnerability to COVID-19. At this moment, state regulatory transparency is vital to ensure public health and wellness. 

Few states have maintained a public collection of pollution reports and companies’ requests for leniency on environmental regulations and permit requirements throughout this crisis (e.g. Minnesota, Indiana, and Pennsylvania). Fortunately, Michigan is one of those states. While the majority of companies in Michigan that requested enforcement leniency from the state have gotten it, all issues of non-compliance appear to have been thoroughly reviewed prior to approval by the Michigan Department of Environment, Great Lakes, and Energy (EGLE) to ensure the safety of Michigan citizens. 

As of June 15, out of 151 requests, 112 were approved, 33 are pending, and six were rejected. Moreover, only three leniency requests were rejected on the grounds that the COVID-19 situation did not limit the companies’ ability to comply with pre-existing environmental regulations.

For further information, please visit EGLE’s website.

FLOW, Michigan Citizens for Water Conservation to Host Webinar on Nestlé: Stopping the Groundwater Grab

The public is invited to join FLOW and the Michigan Citizens for Water Conservation as we co-host a one-hour webinar on Wednesday, June 17, at 1 p.m., providing frontline, scientific, and legal insights into citizen-led efforts to challenge Nestlé, the Swiss-based corporate giant, in its quest to expand its groundwater grab in Michigan.

Every year, Nestlé in its operations near Evart pumps hundreds of millions of gallons of public groundwater virtually for free, bottles it, and sells it under the Ice Mountain brand back to the public at a huge markup — while threatening streams that provide aquatic habitat and flow to Lake Michigan.

Presenters will include:

  • Jim Olson, President & Legal Advisor, FLOW
  • Peggy Case, President, Michigan Citizens for Water Conservation

Register for the June 17 event: Click here to reserve your spot for the Zoom webinar.

Take action today! The public also is invited to take action today to help stop this unlawful capture of the public’s water. Click this link to learn more about the issue and personalize our template email to Michigan Department of Environment, Great Lakes, and Energy Director Liesl Clark, as well as Gov. Gretchen Whitmer, to urge them to uphold the law and their roles as trustees of our public water by rejecting the Nestlé permit once and for all.

State Points to Fatal Flaw in ‘Line 5’ Tunnel Law

In Enbridge v. Michigan, the Court of Appeals Hears Arguments on Constitutionality of Lame-Duck Legislation Fast-tracked under Former Gov. Snyder

Photo: Robert Reichel, framed in green rectangle, an Assistant Attorney General at the Michigan Department of Attorney General, addresses the Michigan Court of Appeals on June 3, 2020, via Zoom, in the case, Enbridge v. State of Michigan.

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

What may seem like dry legal arguments over the interpretation of a few words sometimes can have ripple effects on people, health, safety, and the environment.

Such is the case with arguments heard June 3 before the Michigan Court of Appeals over the fate of the proposed Enbridge oil pipeline tunnel under the Straits of Mackinac, which promises to leave a lasting mark on the future of the Straits and the people of the Upper Great Lakes. (Click here to watch a video-recording of the Court of Appeals hearing).

In December 2018, the Legislature passed Act 359 as the Snyder Administration prepared to leave office. The goal of the Act was to help Canada’s Enbridge build, lease-back, use, and operate tax-free a tunnel to house a new pipeline to replace its decaying Line 5 crude oil pipeline snaking across the bottom of the Straits of Mackinac. In March 2019, Attorney General Dana Nessel, in a carefully written opinion, ruled that the tunnel law was unconstitutional because it violated article 4, section 24 of the Michigan Constitution.

As a result, state agencies could not process matters based on the proposed tunnel law because the Attorney General’s opinion was binding on those agencies.  A few months later, Enbridge filed a lawsuit against the State to nullify the Attorney General’s opinion and rule Act 359 constitutional and its tunnel pipeline deal valid, prevailing in the Court of Claims in October. The State appealed to the Court of Appeals for the arguments heard Wednesday and a decision.

State: Title of Tunnel Law Says One Thing, Does Something Else

The State of Michigan focused its argument in front of the Appeals Court on article 4, section 24 of the Michigan’s Constitution, popularly labeled the “title-object” clause, which prohibits the legislature from saying a law’s purpose is one thing, when the text of the law is about something else or when adding other things that are not incidental to implementing the law’s purpose.

Let’s give this some context. For example, the legislature cannot state in legislation that it is acquiring state land to establish and operate a public state park, then convey the land to a private corporation to build and operate the park. Or, given the same example, the state law cannot expressly say the project is a public park, then provide in the law for also using the land for a race-track, which is not incidental to implementing a public park, the law’s purpose.

So, there’s good reason for this provision of the state constitution, because it prohibits the legislature from duping others, including the public, into thinking the law is about one thing, when in fact it is about another or multiple things. In short, as our Supreme Court has said, the purpose of the “title-object” limitation is to provide “fair notice” to legislators and the public and to prevent “subterfuge” or deceit on affected persons and the public.

Enter the COVID-19 “Zoom” Courtroom of the Michigan Court of Appeals

On June 3, Judges Cameron, Boonstra, and Letica heard arguments from Robert Reichel, a senior, career lawyer for Michigan’s Attorney General Dana Nessel, and John Bursch, a lawyer for Enbridge, over the constitutionality of Act 359 under the “title-object” clause of the Michigan Constitution.  There were no fireworks. Bob Reichel meticulously laid out the State’s two-fold arguments: 

  1. The title clause of Act 359 authorized the Mackinac Bridge Authority (“MBA”) to acquire and operate, or a new Mackinac Straits Corridor Authority (“MSCA”) to acquire and operate a state corridor utility tunnel for Enbridge’s oil pipeline and supposedly other utility electrical or natural gas lines under the Straits of Mackinac. But the provisions of the law itself authorized Enbridge, a private corporation, to acquire the bottomlands of the Straits, construct, transfer to the MSCA the title, but leaseback to Enbridge to control, occupy, and use the public trust bottomlands for 99 years, with little oversight.
  2. The title clause of Act 359 has a single object, the acquisition and operation of a public bridge by the authority for public vehicles. The body of the law has multiple purposes or objects, including transferring authority for the tunnel and pipeline to MSCA, assigning easements, entering into the 99-year lease, requiring the MSCA to review and sign a tunnel agreement, third agreement, authorizing Enbridge to sublease and manage the tunnel space, and requiring the Attorney General of Michigan to pay Enbridge’s legal costs if the Attorney General on behalf of the people of Michigan objects to the lawfulness of the tunnel and pipeline [Emphasis added].

Enbridge Downplays the “Who” and Expands the “What” in Tunnel Law

John Bursch for Enbridge avec bowtie, argued that the title clause of Act 359 covered infrastructure connecting the Upper Peninsula to the Lower Peninsula, so the tunnel and pipeline are surely part of the purpose and object. He also argued that it doesn’t matter “who” does the project, as long as it’s a government agency doing it, so the MSCA has full authority to sign agreements and to satisfy the project described in Act 359. As to multiple purposes not squarely within the title, he argued they were germane to carrying out the project.

Robert Reichel exercised his right to rebuttal and pointed out that both the “who” and “what” mattered.  In the “title” clause of Act 359, both the new Mackinac Straits Corridor Authority and older Mackinac Bridge Authority are authorized to acquire, establish, and operate a public project. But unlike the “title” clause, the body or provisions of Act 359 itself actually authorize Enbridge, a private entity, to control and operate the tunnel. After listening to arguments, none of the three judges asked any questions.

A Private Tunnel Project Paraded as a Publicly Operated One Is Subterranean Subterfuge

The way I see it, the scales of justice in this case tip precipitously in favor of the people of the State of Michigan and the integrity of the state constitution. The law should mean what it says, not what a lame-duck legislature concocts in the last weeks of 2018 to satisfy the desires embodied in self-serving agreements between Enbridge and the Governor’s executive office. Ironically, these agreements themselves offer up the violation of the title-object clause.  

The 1952 law creating the Mackinac Bridge Authority provided for the establishment and operation of a public project, financed by the public, and managed and operated by the public through the MBA and Michigan Department of Transportation. The title clause of the 2018 tunnel law, Act 359, represents the same thing, a public utility tunnel, owned and operated by the MSCA, a state governmental body.  In fact, the body of the law provides for a complex set of agreements, rights, and duties that hands the tunnel and pipeline control, and control of other utilities, and operation entirely to Enbridge with relatively little paper-shuffling control by the MSCA. Paragraph G of the Second Agreement, signed by Snyder and Enbridge in October 2018, contains this glaring admission: 

The State and Enbridge agree to initiate discussions, as soon as practicable, to negotiate a public-private partnership agreement with the Mackinac Bridge Authority (“Authority”) with respect to the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment and, to the extent practicable, Utilities in that Tunnel (hereinafter “Tunnel Project Agreement”)… [T]he Authority would execute a lease or other agreements to: (a) authorize Enbridge’s use of the Straits Tunnel for the purpose of locating the Line 5 Straits Replacement Segment for as long as the Line 5 Straits Replacement Segment shall be in operation by Enbridge; (b) provide that Enbridge will operate and maintain the Straits Tunnel during the term of the lease on terms to be agreed; and (c) specify the conditions under which Utilities may gain access to the Straits Tunnel.

Nowhere in the “title” clause of Act 359 calling on the MSCA to establish and operate a tunnel does the law state that Enbridge will build, control, use, and operate a tunnel for as long as the tunnel is in operation. In the words of the Michigan Supreme Court, this does not provide fair notice to the log-rolling that took place in the last days of 2018. Worse, it constitutes a subterfuge and deceit on the people of Michigan that our constitution and courts prohibit.  

Attorney General Nessel was right when she issued her opinion in 2019; Act 359 is unconstitutional. If Enbridge wants to build and operate a tunnel, let it choose to design and apply for the authorization and permits to build a tunnel for its private crude oil pipeline under the laws of Michigan that apply to and protect the waters and bottomlands of the Straits of Mackinac and the Great Lakes.

Racial Equity and Clean Water for All Now!

Dear Friends,

We need racial equity and access to clean water for all now.

The murder of George Floyd in Minneapolis and continuing protests across the country and globe require each of us to re-examine our basic principles and to envision anew the diverse, inclusive, equitable, and just society we must seek together. This is no less true of FLOW than of other organizations with a public-interest mission.

At its heart, the environmental movement is about ensuring that future generations are not shortchanged of their right to a sustainable society. We cannot achieve this mission without addressing the many ways in which people of color — our fellow neighbors, friends, family and community members — are deprived today of economic and social opportunity and of their very lives.

The eyes of the world are on nightly demonstrations in American cities. The lack of racial equity is once again laid bare for all to see. George Floyd is one of countless African-Americans and other people of color sacrificed by a system and society that devalues their lives and humanity.

Our social institutions — from police departments to drinking water utilities — need to deconstruct and rebuild their practices now. And all of us need to open our hearts to each other. That’s what we hear in the growing protests.

Our Great Lakes region includes many communities of color that bear a disproportional burden of environmental contamination, lack meaningful opportunities to participate in government decision-making, and cope without access to clean water, air, and basic living conditions. The growing threat of climate change poses a disproportional risk to many of these communities as well.

A key priority of FLOW’s current work is partnerships with affected communities of color and low-income populations whose health is put at risk by punitive policies that deny access to the most fundamental public service of all — safe, clean, and affordable drinking water. These water-shutoff policies are particularly deplorable at a time when a global pandemic makes water for basic sanitation critical to health — indeed, to survival.

FLOW and our allies and partners in front-line communities are working hard right now to develop policy solutions and funding sources that ensure affordable drinking water for all and the revenues that water departments need to keep the water flowing.

And we are committed to helping bring about the broader social change that leads to true social and environmental justice.

This is only a beginning. All of us must hold a mirror to ourselves to see the responsibility we bear to recognize and help end systemic and structural racial inequity. FLOW will strengthen and undertake additional initiatives to do so within our stated mission of assuring that the public trust right to access water is secured for all.

Please join us in committing to the work ahead to dismantle the societal assumptions, institutions, laws, and practices that deny our fellow citizens their fundamental rights to the lives and livelihoods that are consistent with human dignity.

In solidarity,

The FLOW Team

Exploring the Spirituality of the Great Lakes

The Great Lakes are often described as Earth’s largest freshwater ecosystem, or an economic engine that supports millions of jobs. But they are more; many see in them and the places that surround them a spiritual force and inspiration.

A new website, the Great Lakes Spirituality Project, is attempting to capture that essence. Billed as “stories, reflections and conversations around a spirituality of the Great Lakes Basin,” the Project is intended “to further develop a spirituality of the Lakes that values and protects the Great Lakes Basin and the life that depends on these waters.”

Check out the Great Lakes Spirituality Project’s interview with FLOW senior policy advisor Dave Dempsey.

Founder of the website and project is Dan Robinson, a Wisconsin resident born in Indiana. Although he says the Great Lakes weren’t really a part of his experience growing up, in adulthood he has forged a relationship with them that led to the project. FLOW asked him to tell the story of the Great Lakes Spirituality Project from his perspective.

What led to your appreciation of the Great Lakes?

Growing up in a small farming town in Indiana, I constantly was outside playing, fishing, collecting insects, and working on farms, so my connection to the outdoors was always there. But the Great Lakes seemed very far away, and I only saw Lake Michigan about once a year through the window of a car on my way to a Chicago Cubs baseball game.

As an adult, though, that changed. My wife and I spent part of our honeymoon on the north shore of Lake Superior, my first real taste of the Lakes. Coming across William Ashworth’s book, The Late Great Lakes, in a Kentucky library captured my imagination. A getaway weekend in South Haven, Michigan, gave me an almost mystical encounter with Lake Michigan on the proverbial dark and stormy night. Six years living in Manistee, Michigan, allowed me to know the everyday life of Lake Michigan. Now, I live near the Wolf River in Wisconsin, which is a part of the Great Lakes Basin and has helped me see the Lakes’ watershed as a whole.

In my professional work, I’ve bounced around a little bit. I was accepted to Purdue University in the school’s Natural Resources department, but graduated with a degree in sociology and a minor in religious studies. Years later, I started a Master’s degree in environmental studies, but ended up getting my Master’s in Theological Studies. For many years, I worked in ministry in the Christian tradition and always tried to connect justice, caring for creation, and the common good to that work. And throughout my career, I’ve been a performing musician, as well.

Now, after three grown children and 34 great years of marriage, I find myself fortunate in combining all these interests and experiences. I host a folk music program for Wisconsin Public Radio, and the Great Lakes Spirituality Project gives me the opportunity to bring my experience with theology and spirituality together with my interest in protecting the Great Lakes.

What are you attempting to accomplish with the Great Lakes Spirituality Project? 

The Great Lakes Spirituality Project has three main goals:

  • Articulating what a spirituality of the Great Lakes looks like, through conversation, stories and reflections;
  • Adding another spiritual voice to the work of protecting the Lakes; and
  • Serving as a connecting point for spiritual communities and individuals who care about the Lakes.

I believe a healthy spiritual perspective is vital to the work of caring for the Great Lakes. Because so many people have an emotional and spiritual connection to the Lakes, the work of the Project can speak to them and encourage them to bring their whole selves and experiences to protection of these waters.

The Project can also bring together a wide variety of people, from Indigenous communities to Jewish synagogues, from Christian churches to Muslim mosques, as well as individuals who don’t identify with any one religious tradition, and beyond.

How would you characterize your point of view on environmental issues that relate to the Great Lakes? Are you discussing issues or values or both?

While a spiritual perspective on our connection to the Lakes can vary from tradition to tradition and person to person, the basic stance of the Project is that we as human beings are just one equal part of an ecosystem that is based on the watershed of the Lakes. As such, we can only flourish in a healthy Great Lakes Basin when all life is able to flourish.

We have a responsibility, then, to care for the Lakes as both necessity and gift, whether we view that gift as coming from a Creator or some other Ultimate Reality. That means we have to carry that responsibility out in practical actions. Values have no value if they’re not being put into practice, so the Project needs to address how we can apply spiritual values in practically caring for the Lakes, and therefore ultimately caring for ourselves.

What do you see as the biggest challenges to the integrity of the Great Lakes over time and what is the greatest strength we have in dealing with those?

The practical threats to the well-being of the Great Lakes Basin and the life that depends on these waters are serious and well-documented — climate change, invasive species, pollution run-off, etc. In many ways, we know how to address or mitigate these problems.

The challenge comes from our lack of will to take the necessary actions because they involve some self-sacrifice, or at the very least, change. In particular, those of us with privilege who wield a disproportionate amount of power and influence (including myself as a middle-class, white man) are among the most reluctant to sacrifice and change.

A spiritual perspective gives us another, important avenue to move forward. Putting our efforts in a spiritual or religious context can help us see our individual actions as part of a bigger picture and provide us with support for those actions, whether that support comes from an ethical framework, a community of like-minded people, or a higher power.

What are your plans and next steps for the Great Lakes Spirituality Project?

In the short run, I’d like to see the Project focus on having conversations with folks from a wide variety of spiritual perspectives and life experiences, particularly under-represented people, scientists, and religious communities. Also in the short term, I’ll be working to develop relationships with people and organizations across the Great Lakes Basin, helping them to know about the Project.

The Project will evolve as time goes by, but ultimately, I’d like to see it start to articulate a shared understanding of a Great Lakes Spirituality and how that shared understanding can help people care for the Great Lakes Basin.

For more information, please contact Dan and the Great Lakes Spirituality Project by emailing him at dan@glspirit.com.

Decision Time Coming on Line 5 Oil Tunnel

enbridges-line-5-under-the-straits-of-mackinac

Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes

By Emma Moulton, FLOW Milliken Intern for Communications

By Emma Moulton, FLOW Milliken Intern for Communications

During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.

MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.

Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.

It’s 2020, Not 1953, and A Momentous Decision Awaits

An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.

“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”

Groups Point to Risks, Legal Tactics, Lack of Public Necessity

In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.

And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.

The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”

On behalf of multiple groups and tribes, including the Michigan Environmental Council, the Grand Traverse Band of Ottawa and Chippewa Indians, Tip Of The Mitt Watershed Council, and National Wildlife Federation, attorney Christopher Bzdok highlighted Enbridge’s thin reasoning in support of its request for a declaratory ruling and noted that the MPSC “reserved jurisdiction and authority over Line 5, and the right to issue subsequent orders as the Commission deemed necessary. That reservation gives the Commission ample authority to require a new approval for the project and a new contested case.”

Tribes Voice Concerns over Treaty Rights and Survival

Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.

In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”

On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”

Next Steps from the MPSC on a Line 5 Oil Tunnel

The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.

If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.