Author: FLOW Editor

March 10 Webinar – Deep Threats to Our Sixth Great Lake: Spotlighting and Solving Michigan’s Groundwater Emergency

FLOW holds webinar: Wednesday, March 10, at Noon EST

Out of sight and therefore out of mind, Michigan’s groundwater faces deep threats, including contamination in thousands of places by everything from failing septic systems to industrial chemicals. A Zoom webinar hosted by FLOW on Wednesday, March 10, from noon to 1 p.m. EST, will provide insight and commentary on the state of Michigan’s groundwater and what can be done to better protect the source of drinking water for 45% of Michigan’s population. In addition, invited speakers will make presentations on other critical issues related to groundwater quality and quantity. Click here to register.

FLOW Senior Advisor Dave Dempsey will discuss FLOW’s new report, Deep Threats to our Sixth Great Lake. The second of FLOW’s reports on Michigan groundwater, Deep Threats, proposes a Groundwater Protection Act as a remedy to the widespread contamination of this vital resource.

Other Presenters will include:

  • Carrie Jennings, Policy and Research Director for the Freshwater Society, a Minnesota-based nonprofit that has received a grant from the Joyce Foundation for research on groundwater governance in some of the Great Lakes states. The Society will complete an analysis of current law, policy, and practice that highlights the key policies and tools needed for sustainable management of groundwater as part of the water system in Minnesota, Wisconsin, Illinois, Indiana, Michigan, and Ohio, and will include outreach to, and convening of, interested state and tribal groundwater staff.
  • Dr. Alan Steinman, the Allen and Helen Hunting Director of the Robert B. Annis Water Research Institute at Grand Valley State University will discuss an upcoming Michigan groundwater summit and the findings and implications of a study of rising chloride levels in Ottawa County groundwater.

Register for the March 10 event: Click here to reserve your spot for the Zoom webinar.

Canada’s Pressure Campaign to Keep Running the Dangerous ‘Line 5’ Pipelines in the Great Lakes Calls for a “Reality Check”

Jim Olson is FLOW’s Founder & Senior Legal Advisor

Straits of Mackinac photo by Barbara Brown

By Jim Olson

In mid-November, Michigan Governor Gretchen Whitmer and Department of Natural Resources Director Dan Eichinger issued a Notice of Revocation of the easement for the crossing of Enbridge’s crude oil dual pipelines on the lakebed of the Straits of Mackinac. The twin pipelines are part of Line 5, which carries crude oil and natural gas liquids (including propane) from Canada through the U.S. and back into Canada for Ontario refineries or foreign exports.

Enbridge and the Canadian oil industry have now launched a media campaign to stir up fear in Ontarioand political pressure in Ottawa, Michigan, and Washington, D.C.about  the shutdown of the perilous Line 5 at the confluence of Lake Huron and Lake Michigan. The well-oiled media machine of Calgary, Enbridge’s headquarters and ground zero for the Canadian extraction of oil, has unleashed a barrage of stories that claim Michigan and the U.S. need Canadian oil, that thousands of jobs in Sarnia are in jeopardy, and that Sarnia and Ontario oil refineries already plan to implement an alternative by transporting crude oil by rail or ship it up the St Lawrence and on to Sarnia—a scare tactic on Ontario citizens.

Without demeaning the concerns of Ontario residents, this attempt by Enbridge to oppose the shutdown of the Line 5 dual pipelines in Lake Michigan and Lake Huron requires a reality check: Both governments, the provinces and states, and the citizens of both countries—40 million of us—depend on the Great Lakes for navigation, fishing, drinking water, health, jobs, and quality of life.

Over the next week, FLOW will offer subsequent reality checks about Line 5.

Reality Check No. 1—The State of Michigan Has the Legal Duty and Authority to Revoke the Easement and Shut Down Line 5 in the Straits of Mackinac, which the Federal Government Cannot Preempt.

Michigan lawfully revoked the 1953 easement and operation of Line 5 on the bottomlands of the Straits of Mackinac to prevent the undeniable risk of unacceptable, devastating harm to Lake Huron and Lake Michigan. In response, Enbridge filed a lawsuit in federal court to block the State of Michigan order that requires a shutdown of the operation of Line 5 in the Straits of Mackinac by May 12, 2021. Enbridge then sent a letter to Governor Whitmer that refused to acknowledge and comply with the revocation, claiming Michigan did not have the legal authority to revoke the easement and the operation of Line 5 in the Straits of Mackinac. This is flatly wrong.

Like every state, when Michigan joined the Union in 1837, it took sovereign title to all of its navigable waters and lands beneath them. In the words of the U.S. Supreme Court, this title was “conferred upon Michigan by the federal constitution itself” and vested in the states “absolutely.” [PPL Montana v Montana, 565 U.S. 576 (2012)] The State holds this title under a solemn, perpetual public trust for the benefit of its citizens, who are the legal beneficiaries of this trust. The state government is the “sworn guardian” of these lands and waters, and has an affirmative duty to protect rights of citizens to navigation, fishing, drinking water, boating, and other water-dependent public needs from interference or harm. This public trust title and interests are perpetual and irrepealable and any easement or other agreement for use of Great Lakes bottomlands is revocable when necessary to prevent serious harm to the public trust and these protected uses.

Because Michigan revoked the easement and ordered the shutdown of Line 5 under the Straits and Great Lakes to prevent a catastrophic spill that all agree would be devastating and cause irreparably damage to these trust lands and waters, it is unlikely under any imaginable legal theory—Enbridge has tossed a slew of them on the courthouse wall—that a federal court will allow a private foreign corporation or Canada to override Michigan’s exercise of its core sovereign power to protect the rights of its citizens and these public trust lands and waters. 

Under revered decisions of the U.S. Supreme Court, these core principles of state sovereignty are not and cannot be preempted by federal law or the federal constitution; there is only one exception to this rule, and that is where Congress acts to improve navigation or promote commerce or foreign affairs related to, or dependent on, navigation in or over these waters. Crude oil pipelines can be routed anywhere, and most certainly are not dependent on navigable waters like the Straits of Mackinac and the Great Lakes. Crude oil pipelines have nothing to do with navigation and shipping or the promotion of these navigational interests. 

Reality Check No. 2—The MPSC Must Not Fail Again to Consider and Determine the Necessity, Impacts, and Alternatives to Line 5 in the Great Lakes

Michigan approved the 1953 easement to Lakehead Pipe Line Company, now Enbridge, as an accommodation. It allowed the company to save money by taking the shortest route for a 30-inch pipeline to carry 300,000 barrels per day (bpd) of crude oil—at 42 U.S. gallons per barrel, that’s  12,600,000 U.S. gallonsfrom a pipeline hub in Superior, Wisconsin, across the Upper Peninsula of Michigan, along the bottom of the Straits of Mackinac, crossing part of the Lower Peninsula and then under the St. Clair River to Sarnia. As a result, the company did not have to build a pipeline down, around Chicago, and across southern Michigan to Sarnia. Enbridge expressly agreed that its easement and operation of Line 5 in the Straits were subject to the prudence of an ordinary person to prevent harm to public and private property—namely, the public trust in the Straits and property of riparian landowners and communities along Lake Huron and Lake Michigan. According to an expert analysis and modeling by the University of Michigan’s Water Center, up to 700 miles of shoreline and the upper one-third of Lake Huron and Lake Michigan would suffer devastating, irreparable harm in the event of a failure.

In 1969, Michigan’s Public Service Commission (MPSC) gave Lakehead (now Enbridge) permission to build a second 30-inch pipeline to carry 400,000 bpd of crude oil around Chicago and across southern Michigan to Sarnia. So, ironically, just 16 years after the push for Line 5’s shorter route through the Straits, Enbridge also operates Line 6b using the longer route and ended up with two pipelines.

Fast forward to 2010, and negligence by Enbridge led to Line 6b’s rupture and spill of more than one million gallons of heavy tar sands crude into the Kalamazoo River. Although Enbridge paid for years of cleanup, ultimately it appears that Enbridge was rewarded for its failure with permission to rebuild and supersize the failed pipeline. Enbridge maneuvered the MPSC to not only approve a new replacement 6b pipeline (now called 78), but to increase the diameter to 36 inches and double the design capacity to 800,000 bpd (33,600,000 U.S. gallons per day). That’s not all: During this same time period the MPSC approved Enbridge’s addition of anti-friction fluid devices to Line 5 to increase the flow of crude oil from 300,000 to 540,000 bpd, and 80 percent increase to about 23,000,000 U.S. gallons of oil per day. 

In sum, the MPSC granted permission to Enbridge to nearly double the capacity for the flow of crude oil through Michigan and mostly back into Canada—from 700,000 bpd to 1,340,000 bpd or 56 million gallons a day. Despite the nearly 100 percent increase in crude oil transport, the MPSC never looked at what the right hand and left hand were doing. As a result, the MPSC failed to consider and determine the necessity, impacts, and alternatives to this doubling of capacity, as required by its public utility laws and the Michigan Environmental Protection Act (MEPA). Under MEPA, the MPSC must consider and determine the likely effects and alternatives of the proposed need or conduct. Had the MPSC done so, it would have realized that the nearly doubled design capacity in Line 6b would have handled most of the oil flow volume in Line 5; in fact, the MPSC could have looked at both its right and left hands, and addressed the dangers of Line 5 in the Straits, made evident by the Kalamazoo River disaster, by requiring Enbridge to size the new replacement line for 6b for all of Enbridge’s need. 

Had Enbridge not manipulated the MPSC into segmenting the company’s planned near doubling of crude oil volume, Line 5 would be gone and Enbridge would be operating one new, replacement line 6b (78). The irony is that one of Enbridge’s executives in the 6b replacement case testified under oath that the enlarged 36-inch pipe or 400,000 bpd increase would meet Enbridge’s, and presumably Canadian refineries’, future crude oil needs. 

Because the duty of the MPSC to consider need, impacts, and alternatives is a continuing duty under the MEPA, it can now correct this serious legal error and take into account the overall Enbridge projects that doubled capacity through its Michigan pipeline infrastructure as part of Enbridge’s pending application to approve a replacement tunnel for a new Line 5 pipeline under the Straits of Mackinac. According to its application and a lease-back agreement, this will allow Enbridge to operate Line 5 for another 99 years. 

Reality Check No. 3—Alternatives Exist to Line 5 for Oil and Propane Supplies that Don’t Threaten the Economy and the Great Lakes

Enbridge and Canada claim that Line 5 benefits the U.S. and Michigan and that Ontario jobs associated with the crude oil transported to Sarnia overshadow the inestimable value of the public trust, sovereign title, and life and livelihoods of states and Canadian provinces sharing Lake Huron and Lake Michigan. The numbers don’t add up. A sizeable spill into the Straits and the upper one-third of Lake Huron and Lake Michigan would threaten the 350,000 jobs in Michigan’s coastal communities that are directly tied to the Great Lakes and depend on the Great Lakes; a spill would jeopardize the 1.3 million jobs and $82 billion in wages tied to tourism, agriculture, fishing, shipping and related industries in the Great Lakes.

As Canadian expert Warren Maybee recently pointed out, “The oil is flowing into Canada. The U.S. doesn’t really gain any benefit… Most of it is just traveling through their country in order to feed into our system.” 

The fact is that Line 5 is basically for the transport of Canadian oil through Michigan and back into Sarnia for Ontario, eastern Canada, and export to England. The few benefits of Michigan hardly outweigh the State’s duty to protect the public and Straits of Mackinac from billions of dollars and irreversible harm to their livelihood and quality of life. With the upper one-third of Lake Huron and portions of Georgian Bay in harm’s way, there would also be a substantial impact on Ontario’s environment, property owners, tourism, agriculture, and shipping jobs and economy.

As has been well documented, the 41-year-old Line 6b that ruptured in 2010 caused $1.2 billion in damages to the Kalamazoo River, one of the largest inland-waterway oil spills in U.S. history. The 68-year-old Line 5 dual pipelines in the Straits pose a clear danger of far greater damage. Strong currents eroded and scoured away soils under the dual pipelines, elevating long spans of pipe; the problem is so serious that 228 supports have been added since 2001, suspending up to 3 miles of pipes above the bottomland. An anchor strike dented or gouged the dual lines in 2018. Last summer, for at least the third time, an anchor or a heavy cable struck the pipelines and damaged their supporting structure. The next anchor strike could unmoor or break the long sections of pipe now suspended several feet in the water above the lakebed.

Studies conducted by a Michigan State University economic ecologist commission by FLOW have put estimated damages of a spill to natural resources, public and private property, and the tourist economy at over $6 billion, and shrink the nation’s Gross Domestic Product by $45 billion if a break or leak shuts down shipping and hampers steel making for just two weeks. Governor Whitmer and Director Eichinger, as trustees of these public trust waters and uses, had no choice but to exercise their inherent power and fulfill their mandatory duty to revoke the easement and dual lines in the Straits before catastrophe strikes. 

Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to FLOW’s experts. In addition, just 1-2 propane rail cars or 4-5 tanker trucks a day could replace the aging Line 5 pipeline’s U.P. propane capacity without risking a Great Lakes oil spill, FLOW’s latest research shows. The rail cars or tanker trucks could deliver propane from Superior, Wisconsin, to the existing propane storage-and-distribution center in Rapid River, Michigan, north of Escanaba on U.S. 2. 

A Line 5 shutdown could increase the cost of gasoline in metro Detroit by about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration. Line 5’s temporary shutdown in 2020 due to damage had no impact on gas prices, according to independent research. Shutting down Line 5 would add just 5 cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.

Given that alternatives to Line 5 exist, including the increased capacity in Line 78, there is no reason why with a few adjustments in the overall pipeline system that jobs and economic concerns in Ontario or Michigan are really threatened. And, as noted above, the harm to jobs and the economy of a Line 5 spill in the Straits would far outweigh any benefit from continuing to operate the outdated infrastructure.

In short, when Line 5 shuts down, Detroit jets will still fly and union refinery jobs will still exist. Michigan and the U.S., and Ontario on Lake Huron, gain no real benefit and hold 100 percent of the risk of serious harm. It simply isn’t an “either or” analysis. If the harm to the public trust, livelihood, quality of life of the millions of people in Michigan and the Great Lakes Basin outweigh the fewer than 100 permanent Enbridge jobs from Line 5 in Michigan, or jobs in Canada, then the sovereign interests in these waters in the law are “paramount,” which any standard dictionary defines as “above all else.”

FLOW Will Appeal Administrative Decision on Oil Tunnel and Pipeline that Ignores Critical Evidence on Climate, Public Need, and Looming Shutdown of Line 5

Photo by Barbara Brown.

Jim Olson, environmental attorney and senior legal advisor to FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, reacts to a narrow ruling released today by an administrative law judge on Enbridge’s oil tunnel proposed for the Straits of Mackinac:

Today’s ruling by Administrative Law Judge (ALJ) Dennis W. Mack ignores the declining public need for oil as the U.S. and world finally reckon with the climate emergency, and it is blind to the fact that Gov. Whitmer has ordered the permanent shutdown of the Line 5 pipeline that the tunnel would contain this May.

“The State of Michigan will never reach a just and lawful decision on the proposed oil tunnel by agreeing with Enbridge to ignore critical evidence and treat a proposed oil tunnel meant to last 99 years as simply a maintenance-and-replacement project. The tunnel is a Trojan Horse designed to push billions of gallons of oil through the world’s largest system of freshwater lakes in an era of water crises hastened by climate change.

“As a permissive intervenor in the case, FLOW again plans to file an appeal with the Michigan Public Service Commission, as we did in November, along with other environmental and tribal interests

The Michigan Environmental Protection Act (MEPA) enacted in 1970 was created to compel agencies like the MPSC to evaluate the cumulative environmental impacts and to examine alternatives to proposed projects. In the case at hand, MEPA requires the MPSC to examine the environmental, health, and climatic risks of the proposed tunnel and Line 5 pipeline. The greenhouse gas emissions from Line 5’s oil and natural gas liquids, at more than 57 million metric tons a year, is greater than the annual yield from the combined operation on the nation’s three largest coal plants.

“The law does not keep the MPSC frozen in time such that they can ignore these paramount issues.

“The State of Michigan has a perpetual duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them, which led to the Governor’s and DNR’s November 13 order and lawsuit to revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac. The ALJ rejected the argument that the Governor’s notice and revocation of the 1953 easement is a basis to evaluate the environmental effects of Line 5 or the consumption of the oil transported on the system under MEPA.”

Background: See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:

Governor’s Budget Proposal Contains $385 Million for Clean Water in Michigan, More For Cleanup and Clean Energy

Governor Gretchen Whitmer on Thursday released a proposed state budget for the fiscal year starting October 1 that includes $385 million in new funding for clean water priorities, as well as funding for emergency contaminated site cleanup and energy projects.

“The Governor’s budget would make some significant investments in Michigan’s vital water resources,” said Liz Kirkwood, executive director of FLOW. “We’re especially pleased with her efforts to begin addressing the huge deficit of state funding for clean water infrastructure. But much more needs to be done.”

Whitmer’s budget proposal, summarized here, includes:

  • $55 million for the Filters First program to begin statewide implementation of drinking water fixture replacements in schools to ensure that children have access to clean, safe drinking water. Lead has been found in some Michigan school drinking water supplies at levels which could cause health impacts in children.
  • $290 million in infrastructure grants for the Michigan Clean Water Plan to address sewer overflows and mitigate public health risks by removing sewage discharge to surface water and groundwater. A portion of this funding would help homeowners to replace failing septic systems, a significant threat to water and public health.
  • $40 million to fund grants to local governments to promote resilient infrastructure through planning and action projects that address issues like coastal erosion, flooding, transportation networks, urban heat, and stormwater management.  

The budget recommendations for clean energy and the environment include:

  • $20 million for contaminated site cleanup to support rapid response to contaminated sites that pose an immediate threat. 
  • $5 million for the State Facility Green Revolving Fund, a catalyst for energy efficiency and renewable energy projects at state facilities, helping reduce the state’s carbon footprint. 
  • $5 million to support the purchase of propane tanks with funds provided as grants with a 50 percent match to help meet our energy needs. 
  • $5 million for the Michigan Saves Green Bank, leveraging private investment in clean energy improvements by incentivizing lenders to provide more favorable rates and terms for renewable energy improvements. This promotes $150 million in private capital for clean energy improvements across the state. 

“As business leaders focused on protecting the Great Lakes, we appreciate seeing in this budget a continued commitment to advancing solutions to transition to a clean energy economy and ensuring the Great Lakes are protected by investing in critical water infrastructure needs across the state,” said Bob Sutherland, president and CEO of Cherry Republic in Glen Arbor, and chairman of the Great Lakes Business Network Clean Energy Working Group.

The budget also contains $15 million for the Dam Safety Emergency Fund for emergency response when dam owners are unwilling or unable to mitigate hazards caused by dam malfunction. This follows catastrophic dam failures near Midland last summer.

For Love of Water: I Need You Most in the Cold Season

Traverse City writer Karen Anderson’s “Love Letter to Otter Creek Beach” appeared in Art Speaks Water: Love Letters to the Lakes—a FLOW collaboration with writer and poet Anne-Marie Oomen—which was presented to the International Joint Commission on July 24, 2019. Anderson’s love letter is as appropriate for Valentine’s Day as any other day.

Dear Otter Creek Beach,

I love you in all seasons and you love me back. But it occurred to me that maybe I need you most in the cold season, the “off-season,” when weather isn’t permitting and I come anyway, yearning to experience that glimpse of eternity in the moment that is always present on your shores. And I remembered the essay “Ice Floes” from my book, “Gradual Clearing: Weather Reports from the Heart.” Here it is, with love.

Ice Floes

Ours is the only car in the parking lot on this Sunday afternoon. My husband and I walk north along the Lake Michigan shore, pulling on gloves and putting up hoods. It might be twenty degrees on the thermometer but it feels like zero.

Below zero when you factor in the wind chill that freezes my eyelashes. I swing my arms and pick up the pace. The footing is firm because the sand is frozen solid. Then, when I’m finally warm, I need to stop and dig a Kleenex out of a pocket for my runny nose.

It’s a good chance to stare and listen. Strange to be on a beach and not hear waves, but they’re lapping against the ice far out in the lake where white turns to dark blue against the horizon. In the silence I hear the creak of ice floes like voices in a conversation.

The sun has dazzle without warmth, a pale yellow disc in the southern sky. For a moment I wish it was summer again, that I was wading in bare feet and stepping over sand castles, dodging dogs and children.

In July, of course, I never yearn for February. We rarely prefer the harder path but sometimes— like today—I glimpse its harsh beauty.

Michigan’s Conservation Centennial: What Does It Teach?

P.J. Hoffmaster, who was Department of Conservation director longer than anyone else, served from 1934-1951 under both Democratic and Republican governors.

Dave Dempsey, Senior Advisor

By Dave Dempsey

The creation of a government agency rarely generates fanfare. Names and organization chart blocks come and go. But this year’s 100th anniversary of the Michigan Department of Natural Resources is a little different.

Signed into law in March 1921 by Governor Alexander Groesbeck, what was then called the Department of Conservation and Commission was the consensus answer to the state’s need to heal the environment after decades of catastrophic mismanagement. 

Read this story on the DNR’s 100th anniversary.

Michigan’s natural resources were consumed at an alarming rate from the time Michigan became a state in 1837. A decline in fish abundance on the Detroit River due to overharvest was noted in the 1870s. In the same decade, timber harvest accelerated to nationally significant levels, ultimately toppling nearly all commercially viable white pine within 50 years. (In 1870 it had been estimated it would take 500 years to exhaust the white pine.) In 1878, the slaughter by market hunters of passenger pigeons near Petoskey resulted in the last major nesting of the birds in Michigan. And on and on.

The thinking—to the extent there was thinking—was that natural resources common to all could be “harvested” by private interests and sold at a profit. No need to worry about the future: there would be plenty left for later generations, or else they would find other ways to live.

Responding to these trends, the Michigan Legislature created a separate agency for each resource: The Board of Fish Commissioners in the 1870s, a Forestry Commission in the 1890s, a troop of paid state game wardens in 1885, a Public Domain Commission in 1908, a State Park Commission in 1919 and finally the Department of Conservation in 1921.

By that year, the public had turned on the resource exploiters, resentful that they had taken a vast portion of a resource bounty that belonged to all—a bounty that was at danger of declining irreversibly. Citizen leaders clamored for a unified agency with a broad perspective, operating from a conservation ethic.

Significantly, the citizenry wanted built-in protection for the new agency from the bias of politicians for short-term gain at the expense of the long-term health of natural resources. The 1921 law created a seven-member citizen Conservation Commission to buffer natural resources decisions from politics.  A few years later the buffer was reinforced when the Commission, not the governor, was given the power to appoint the director of the Department of Conservation.

And that’s the way it worked for 70 years. During that time Michigan’s state forest system became the largest of any state east of the Mississippi, a growing state park system supported a growing tourism economy, and the state won a national reputation as a leader in sustainable game and fish management. The Department’s name changed to DNR and anti-pollution programs were added to its mission in the 1960s and 1970s, but its reputation as a national leader only grew. And the citizen commission was a big part of that.

The Conservation Commission, later renamed the Natural Resources Commission, was the state forum for the big debates on natural resources policy. Heavyweights from all walks of life served on the panel, receiving reimbursement for expenses only, and turnout for some of its decision-making meetings was in the hundreds. Any citizen could speak to the decision-makers and get a response, sometimes immediately. It was transparent government at its best. And it was close to apolitical as an agency could come.

In 1991, Governor John Engler, by executive order, created a new DNR and gave himself the power to appoint the commission chair, a seemingly trivial move that in fact brought the department back under direct political control. In 1995, Engler issued another order splitting pollution programs from the conservation programs, leaving no citizen commission to oversee the pollution programs and neutering the Natural Resources Commission by giving himself the power to appoint the DNR Director.

We can’t go back to the past, but we can learn from it. One hundred years ago, citizens demanded creation of a state agency stewarding natural resources with an eye on the next generation, not the next election. In the ensuing decades Michigan distinguished itself in open decision-making about conservation, and its success grew. It is time to count on the wisdom of a citizen commission for both the DNR and the new Department of Environment, Great Lakes, and Energy to serve as a forum and policy setter for the next 100 years—if Michigan is to remain a national environmental beacon.

FLOW to Mackinac Straits Corridor Authority: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

FLOW President Jim Olson made the following statement to the Mackinac Straits Corridor Authority during a February 3, 2021, public meeting regarding the Line 5 Easement, Assignment, Tunnel Agreement, and 99-year lease.

FLOW and many organizations, appeared and testified before this Authority on Friday, March 6, 2020.  At that time, FLOW submitted a legal analysis and comment, dated March 5, 2020, and on March 6, 2020 made an oral presentation to the Authority that is part of the record in this matter.  I realize that there are new members of the Authority, so, I have attached a copy of this analysis in the “Chat Box” for your convenience and because of the limited time for public comment at this meeting.  Without waiving the several points contained in FLOW’s analysis and comments, today, I want to underscore the fact and law that the DNR Easement, the Assignment from you to Enbridge, and the Tunnel Agreement provisions calling for a 99-year lease have not been authorized under the rule of law of the public trust doctrine:

  1. These documents are subject to the GLSLA, 324.32502-32508 and rules, but to date the agreements and conveyance documents have not been authorized under the GLSLA;
  2. The DNR Tunnel right of way or Easement purports to be authorized under Act 10, now MCL 324.2129, for a public utility easement. However, the DNR has never authorized it based on the required findings under the public trust doctrine, an absolute necessity based on the position of the State, AG Nessel, and DNR in the Ingham County cases: Nessel v Enbridge; and State Governor and DNR Director v Enbridge.

Until this authority is obtained by Enbridge, no contracts should be signed, no monies spent, and no construction commenced; to do so, would be at MSCA’s and Enbridge’s own risk. For this reason, you, the members of MSCA, are requested, respectfully, to ask for an Opinion of Attorney General Dana Nessel, on the serious question of the lack of required authorization of the 2018 Easement, the Assignment of Easement, and the Tunnel Agreement/99-Year Lease Agreement for occupancy and use of the State’s sovereign public trust bottomlands and waters of the Great Lakes.

Thank you.  Should you have any questions, or your AG staff have questions, we remain available to discuss the same.

Premo Fitness, Primo Support of FLOW’s Mission

FLOW’s work is supported through partnering with local, regional, and virtual businesses, including Premo Fitness that share our “Love of Water.” Anna Premo is a Traverse City health and fitness professional who took Premo Fitness virtual during the COVID-19 pandemic. She recently reached out to FLOW to offer a charitable promotion for the month of February. During February 2021, she will donate a percentage of her online sales to FLOW. This is a great opportunity for you to support Great Lakes protection, as well as a business that loves water, and try something new for your personal health. FLOW is thrilled to have Anna Premo as a new business partner.

To learn how your business can partner with FLOW contact Calli Crow calli@flowforwater.org.

 

Hello Fellow Water Lovers,

My name is Anna Premo and I am a fitness trainer based in beautiful Traverse City, Michigan. Almost a year ago I answered the call to quarantine and quickly pivoted from studio classes across town to teaching on social media to keep people connected, safe and moving. Teaching for more than nine months virtually enabled me to stay in close contact with my fellow neighbors. In an effort to reach more people, I compiled some of my favorite virtual classes and created Premo Fitness online. It is an on-demand library of 30-minute low-impact, high-intensity workouts to improve strength and balance in the body and mind.

The creation of Premo Fitness brings the opportunity and responsibility to not only make a difference in the health of my clients, but also in the health of the planet. I believe we are only as healthy as the environment we live in and feel strongly about supporting organizations that are working to protect it. I admire FLOW for the organization’s dedication to safeguard the Great Lakes by enacting real change on the policy level. To support FLOW in its mission, I will be donating 10% of all subscription payments and 50% of all rental fees during the month of February.

If you are looking for a reason to exercise, this is it! Not only will you receive that ever-alluring endorphin boost, but a portion of your proceeds will go directly back to supporting a shared resource we all love.

I look forward to seeing you in class,

Anna

Joan Wolfe’s Enduring Protection of Michigan’s Air, Water, Land, and Living Creatures

Dave Dempsey, Senior Advisor

By Dave Dempsey

It is sometimes difficult to see where a hero’s work fits in history immediately after she dies. Not so in the case of Joan Wolfe, who passed away on January 23. A passionate, visionary and effective champion of Michigan’s environment, she holds an assured place in Michigan’s environmental history. Few citizens have done so much to protect our air, water, land, and living creatures for posterity.

Any account of Joan’s work must feature her role in designing and winning legislative approval of the 1970 Michigan Environmental Protection Act (MEPA). And her founding of the West Michigan Environmental Action Council (WMEAC), the first heavyweight citizens group of environmental advocates in our state. She also chaired the state Natural Resources Commission. A complete story of her life and accomplishments is here.

Joan also wrote a cliffhanger, a history of MEPA and the Inland Lakes and Streams Act of 1972. It’s a detailed history of the citizen action that drove the Michigan Legislature to pass these two extraordinary laws, but it’s no dull academic treatise. There is plenty of behind-the-scenes drama as Joan, her husband Will, and a multitude of Michigan citizens overcome lobbyists and unsympathetic legislators who fiercely resist strengthening protections for the environment. Her example and history of citizen advocacy is as important today as it was in the 1970s, maybe more so.

In an era well before e-mail and cell phones, Joan turned I-96 into her advocacy avenue, hurrying the 70 miles to and from her home in Belmont to reach legislators of both major parties and all philosophies for face-to-face persuasion from morning to midnight. But she believed she could have no success without the force of citizens pressuring their own lawmakers, and she dedicated considerable time to partnering with and training groups across the state. One of her fundamental insights was that elected officials are rarely the leaders; rather, citizens must lead those so-called leaders.

I had the honor and privilege of getting to know Joan and Will while researching my first book, Ruin and Recovery (University of Michigan Press, 2001). Every minute I spent with them was memorable. Joan was especially concerned that I accurately report the history of the environmental movement during her leadership era. She graciously reviewed each word and gently pointed out any gaps or inaccuracies.

She also insisted that I make clear that the Inland Lakes and Streams Act was the brainchild and legacy of Will. Truly, they were a team in fashioning tools that 50 years later play a key role in safeguarding Michigan’s natural resources.

Joan’s advocacy was thoughtful and strategic, not governed by emotion (despite her fierce commitment). She encouraged citizen activists to be civil and respectful, not shrill and scattershot. That was one secret to her success.

Joan was the first woman appointed to the Natural Resources Commission and later became its first female chairperson. No woman had served in an equivalent role in any other state.  She broke that glass ceiling. In the 1970s, the citizens conservation and environmental movement was still too much a male show. Some in the movement stereotyped her as an “emotional woman” before coming around to professing that she was more cool-headed and thoughtful, and had more cojones than most of the males.

Joan lent me a videotape (when there were still VCRs) of a special TV program broadcast by Grand Rapids TV-8 on Earth Day 1970. The program featured work she, WMEAC, and others were doing that day. Much of the special addressed the need to protect what was then the future—what we call the present. I told her I was profoundly moved that she was thinking of us, and our children. I think she was pleased.

We owe Joan and her generation a debt it is difficult to repay. But if I could ask her now, I am certain she would say: don’t be disheartened, don’t give up, citizens will always win if they persist. Give your best, and 50 years from now the results of your work will endure, whether it’s a state law or protection of a small local wetland.

We can do no less to respect Joan’s legacy.

FLOW Deeply Disappointed in the State of Michigan’s Environmental Permit Approval for Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac

Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:

“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.

“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel. 

“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”

Background:

Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac. 

Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the  U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location. 

The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River. 

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