This article is excerpted from the third of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss, that make the economic case for government’s role in protecting the environment. The third policy brief, “Resetting Expectations: The Multifaceted Benefits of Regulation for the Economy and Environment,” is available here to read or download.
Pruss’ first policy brief in the series, “Resetting Expectations: Government’s Role in Protecting Human Health and the Environment,”is available here in executive summary and in full.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. (FLOW will unveil the last brief in early December.)
Common to the understanding of economic conservatives is the notion that government regulations interfere with “free markets,” serve as a brake on economic activity, and stifle innovation and competition. The term “regulation” itself suggests to many burdensome “red tape” and unnecessary interference in the market economy.
The evidence proves quite the opposite. Regulations, properly designed and implemented, can be a powerful force fostering innovation in product design, advanced materials, and manufacturing processes. Regulations can reduce manufacturing costs for industry and business, enhance competition, reduce business risks, and expand and create new markets for goods and services.
Environmental regulations, in particular, have created a huge global market for environmental technology, goods, and services. The result is not only marked improvement in the quality and vitality of ecological systems, but health benefits accruing to the public that are valued at trillions of dollars.
Environmental regulations can catalyze needed change in otherwise stagnant areas in business, agriculture, and government. The protection of the Great Lakes freshwater system is a case in point. Billions of dollars have been invested in the management of wastewater and stormwater through the creation of a network of sewers, drains, pipes. New integrated water management systems that include nature-based solutions are proving to be more protective, cost-effective, and sustainable then conventional systems.
Yet investment in superior “green infrastructure” is sorely lagging as both local government and the business community remain fixed on investing in conventional “grey infrastructure.” This paper provides a menu of possible regulatory interventions to address this problem.
Newly formed constituencies focused on policy innovation and educating community leaders on the value and benefits of enlightened water management practices are on the rise. Initiatives like “Our20 Communities,” the Great Lakes Water One Partnership, and Water First all share a vision of aligning community values around a commitment to protecting water.
Integration of the Public Trust Doctrine into local decision-making could, over time, imbue an ethic of enlightened water stewardship, creating a proactive culture to protect and safeguard commonly held resources.
Gov. William G. Milliken, Traverse City’s native son and Michigan’s longest-serving governor, who passed away October 18 at age 97, left behind an important legacy of environmental protection, good governmental policy, and civility in public discourse.
As Michiganders, we’re deeply proud of Gov. Milliken and mourn his passing, too. FLOW senior policy adviser Dave Dempsey, who wrote Gov. Milliken’s biography, knew him and his wife Helen well, and authored this remembrance.
After he left office, Milliken summarized his environmental values: “In Michigan,” he said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
It is the responsibility of FLOW and other environmental stewards to take up Gov. Milliken’s torch and carry it forward. We must preserve our Great Lakes, wetlands, and drinking water held in public trust for all of us, and stop polluters from soiling these most precious resources—which represents 20 percent of the world’s surface freshwater. We will help carry that torch both with honor and humility.
You can learn more about Gov. Milliken’s life in the family tribute posted here. FLOW gratefully acknowledges the Milliken family’s suggestion that memorial donations in Governor William G. Milliken’s name be made to FLOW and the Detroit Riverfront Conservancy. We will carry on the Milliken legacy of environmental stewardship and hope for the future.
To donate to FLOW in honor of Gov. Milliken, please click on our Donate page, fill out all required fields, and write “Governor Milliken” in the bottom field. Thank you.
Michigan has many magnificent natural features, but none is quite like Hartwick Pines. A small remnant of the great white pine forest that spanned millions of acres of Michigan before the European arrival, the 49 acres at the heart of Hartwick Pines contain trees as tall as 160 feet and as old as 400 years. When, in 1992, a storm mortally wounded the tallest and largest of the primeval trees, known as the Monarch, it generated news headlines.
Another great tree has fallen. On Friday, October 18, former Governor William G. Milliken passed away at age 97 in Traverse City. The longest-serving governor in the history of Michigan, Milliken distinguished himself in numerous other ways, several of which seem especially important today.
Former Vermont Governor Richard Snelling in 1982 suggested that Milliken “will surely be recorded in history as one of the nation’s great governors.” The day after Milliken’s passing, the Traverse City Record-Eagle wrote in an editorial that, “We cherish our governor … for his most precious quality: his innate ability to set aside party, politics and partisanship for the good of all Michiganders”.
Perhaps the Governor’s most lasting policy legacy is the framework of environmental laws that came into being during his 14 years in office, from 1969 to 1982. It was a case of the right person at the right time. As public consciousness of a century of environmental neglect and abuse peaked, and a clamor for a new approach grew to a crescendo, Governor Milliken took the initiative to propose or support, and ultimately sign into law the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, the Wetland Protection Act, the Wilderness and Natural Areas Act, the Sand Dune Management and Protection Act, and many more. When the Legislature deadlocked on a proposed recycling deposit on beer and soda containers, he helped lead a citizen initiative to put the proposed law on the ballot. Voters approved it by a two-to-one margin in 1976.
Even in the 1970s, the decade of the first Earth Day, it wasn’t always politically easy to push for a cleaner environment. When scientists identified phosphorus laundry soaps as a major contributor to the algae blooms in western Lake Erie and elsewhere, the proposed remedy was a strict limitation on phosphorus content. Major Republican contributors strongly opposed the change, but Milliken defied them and took aggressive action to bring it into effect. Within only several years phosphorus discharges from wastewater treatment plants plummeted and Lake Erie began to recover.
Another important part of the Milliken record was his concern for the state’s great cities, including Detroit, which was deeply distressed during the 1970s. Working with Democratic Mayor Coleman Young, he invested state and federal resources in the city and won political support unusual for a Republican in the city. Today Milliken’s name crowns Michigan’s first urban state park on the Detroit waterfront.
Milliken’s regard for Michigan’s environment began early. His Traverse City upbringing (and a cottage in nearby Acme) acquainted him with woods and waters. Among his earliest memories were outdoor outings and swimming in Grand Traverse Bay. Deeply rooted in his home community, he frequently returned on weekends to his house on the bay while governor, finding peace and renewal.
But the Governor’s environmental record and values are not his only legacy. His style of governance—shunning the extremes, looking for solutions on which diverse interests could compromise for the public good—was the ultimate trademark of his service. In a time of divided government, when Democrats largely controlled the Legislature, he was able to enact his program through negotiation and cooperation.
Governor Milliken did not demonize his opponents. Public name-calling was foreign to him. And his civility worked. He remained in office longer than any other governor of Michigan in part because voters trusted him to do the right thing.
In researching and writing Governor Milliken’s biography, William G. Milliken: Michigan’s Passionate Moderate, I was honored to spend many hours with him and his wife Helen Milliken, a major historical figure in her own right. They were in person as they were in public—unfailingly gracious, kind, and reflective. There was nothing false or inauthentic about them.
In our time together, both Millikens spoke repeatedly of their appreciation of Michigan’s beauty and the need to continue fighting to protect it. It should not be forgotten that it was Helen Milliken who alerted her husband to the controversy over oil development in the wilds of the Pigeon River Country State Forest, and urged him to take a stand in favor of the forest’s conservation. She was a major influence on his environmental policies.
After he left office, he famously summarized his environmental values: “In Michigan,” he said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather, it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
A part of Michigan’s soul passed from the scene last week, but thanks to Governor Milliken’s work, our soul will renew itself for generations to come.
A memorial service for Governor Milliken will be held in May 2020. The Milliken family has asked that, in lieu of flowers, donations in his memory and in support of his environmental legacy be made to FLOW and the Detroit Riverfront Conservancy.
FLOW and several local and statewide partners will host the Michigan Septic Summit on Wednesday, November 6, at the Hagerty Conference Center in Traverse City. The public event aims to protect fresh water and public health from uncontrolled septic pollution. The one-day conference runs from 9:30 a.m. until 4 p.m. and costs $25 in advance (including lunch) or $30 at the door. Click here to register.
Septic summit attendees will explore emerging research on the human health and environmental risks presented by old and failing septic systems in Michigan, learn about local and regional programs and regulations adopted in response to surface water and groundwater quality threats, and foster dialogue toward more effective and geographically extensive efforts to reduce risks from septic system waste.
“Our wastewater can seem invisible being out of sight and therefore out of mind,” said Kirkwood. “But dealing with our septic issues is paramount in Michigan. This is the Great Lakes state. Whenever we flush, we run the risk of polluting our precious waters if we don’t adopt smart septic regulations.”
Eleven Michigan counties have ordinances that require septic tank inspection at the time the property is sold. Within the first six years of implementing their ordinances, just two of those Michigan counties found 1,000 failed septic tanks and 300 homes without any septic system at all to control their waste water.
Michigan Septic Summit co-sponsors include the League of Women Voters Grand Traverse Area, League of Women Voters Leelanau County, Michigan Environmental Council, Nature Change, Northern Michigan Environmental Action Council, and Traverse Area Association of Realtors. Promoters include Au Sable Institute, Clean Water Action, Leelanau Clean Water, Michigan Resource Stewards, and Tip of the Mitt Watershed Council.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
I just finished immersing myself in global public-water activist Maude Barlow’s incisive new book, Whose Water Is It Anyway?: Taking Water Protection into Public Hands (ECW Press, 2019).Thanks to Maude and the publisher, I received an advance copy a few weeks ago on the promise of a book review, which remains a work-in-progress for next week.
But first, I couldn’t wait to share this article about the Vancouver Writers Fest and its feted authors Barlow, Canada’s leading world water leader, activist, and author of 19 books, and, then, Naomi Klein, equally visionary environmental, climate change, and green activist and writer.
Why my urgency to spread this coverage? Because the Vancouver Writers Fest has captured the urgency of the moment due to the changing climate and its implications for the future control of, and human right to, water.
It is notable that the famed fiction writers’ conference has elevated these two nonfiction writers, whose works herald the citizens of the world to leave the past, become fearlessly engaged in life, not accumulation and consumerism, and halt the privatization of the world’s water.
Those of you who follow FLOW’s Facebook page understand that water is public and held in trust for the benefit of citizens, that privatization is not only morally wrong, but also that when it comes to our public water, schemes to privatize water are, and should be declared, legally and constitutionally prohibited.
Thanks to Maude Barlow, Meera Karunananthan, Emma Lui at the Council of Canadians, the Blue Planet Project, the World Social Forum, and the dedication of so many other individuals and organizations, the United Nations in 2010 declared in successive resolutions that water is a human right. Barlow tells this quiet, heroic story in her new, Whose Water Is It Anyway? It’s a story that should be read by everyone who cares about liberty, dignity, harmony, and the common good of people and planet.
But the deeper, highly readable story she tells is of her own personal journey, and those of others, in a fierce dedication against private control of water on the planet—privatization—everywhere in now in ways both commonplace (for example, Nestlé’s extraction of public groundwater and spring water for billions of dollars in bottled water profit) and extraordinary (e.g. Bechtel’s attempted takeover of Bolivia’s water).
Then there is Naomi Klein’s new book, On Fire: The (Burning) Case for a Green New Deal (Simon and Schuster, 2019), a book that calls on all of us to step into the future now, by giving up rampant material consumerism that is killing the planet, and lighting the fire of a movement that turns on-end our gorging ourselves on the planet and each other—a movement in which we turn to each other and what is good for the planet.
Preachy? Not really. I’d call it a practical, common sense call to action for all of us to join in the creation by FLOW and the Council of Canadians of “Blue Communities” that put water first as if our lives depended on it: Good for all of us, especially children and grandchildren everywhere who will be facing the turmoil and dangers of an over-heating planet in 30 years from now.
So, read the article, and, yes, pick up a copy of these two books! Then take action, because these two authors help show the way. And dive into FLOW’s website for further insight and guidance on how to keep public water in public hands, and steep yourself in FLOW’s mission to defeat privatization and protect water as a commons through the public trust doctrine.
When Lee Botts died October 5 at age 91, the Great Lakes lost one of their best—and most faithful and effective—friends.
Although perhaps not well known in Michigan, Lee was a legend in the Great Lakes environmental community—particularly in northwest Indiana. She not only made our freshwater seas cleaner and more vibrant because of her work, but with constant, generous mentoring, passed her skills on to succeeding generations of advocates.
Jim Olson, FLOW’s founder and president, said, “When you met and worked with Lee, she became your mentor whether you knew it at the time or not. You knew she was a leader, one who led and worked passionately for the integrity of the Great Lakes, but also as a champion of the integrity of the process and the persons involved, whom she challenged to do the right thing. She was always prepared, saw the next strategical moves, and was fiercely articulate when she spoke or wrote. Her legacy includes much of the policy and values that protect the Great Lakes today.”
Long before I met her, Lee had begun a lifelong love affair with the remarkable sand dune region of northwest Indiana. In 1959, Lee had joined the Save the Dunes Council, an organization dedicated to saving what remained of the threatened dunes on Indiana’s Lake Michigan shoreline, sustaining a battle begun decades earlier that finally culminated when Congress established the Indiana Dunes National Lakeshore in 1966. She carried on the work in her later years.
Lee founded the Indiana Dunes Environmental Learning Center within the Indiana Dunes National Park. The center offers year-round environmental education programs and overnight nature-camp experiences for grade-school students and teachers. Around 14,000 students from Indiana, Michigan, and Illinois, visit the Center annually.
Lee schooled me and many young men and women in matters of the Great Lakes. She significantly influenced my outlook on, and understanding of, everything related to the Great Lakes, and Lee’s advice continues to shape my views today.She was generous to me and many others with her time and attention.
“The Palisades nuclear plant was the last nuclear power plant built on the American shores of the Great Lakes, in large part, because of Lee and the precedents she and a few others set in challenging its licensing. The Great Lakes Water Quality Agreement became a powerful tool for holding the United States and Canada accountable for protecting the Great Lakes, in part, because she fought to make it so. She believed fervently that we need to invest in the next generation of leaders, and was a mentor to so many, including me.”
Jane adds: “She was a master strategist, understanding policy, political power, and the power of public action. I was always impressed by the stacks of environmental impact statements and reports in her cottage. She chose to pay attention and act. She knew how to drive policy as an activist, and as a public employee, and nimbly shift from one role to the other over the course of her life and career. She knew when she was in the dumps, and feeling discouraged, and how to take a break, and renew her energies to keep making a difference. And, on top of all this, she was a great cook and generous friend.”
One of my favorite memories of Lee is a night I spent in her house in the Indiana Dunes. It was mid- to late June, the beginning of deep summer. It was sultry and breezy. As I recall, we drank wine as she told Great Lakes stories. The sound of Lake Michigan surf was faint in the background. The choir of frogs in the interdunal wetland was much louder. Here we were, less than 45 miles from downtown Chicago by car, and I could imagine that it had sounded and felt like this, at this place, 150 years earlier. It was Lee’s place.
Bill Davis, environmental attorney and long-time Great Lakes advocate, remembers Lee’s philosophy and spirit. “Lee had a very narrow definition of what was impossible, and from a political point of view, that is an extremely important and powerful concept. There was very, very little that Lee truly thought could not be done. I remember during the ’80s when the Great Lakes movement was discussing what our position should be on discharge of persistent toxins; it was Lee’s influence directly and through those she had mentored that led us to the position of zero discharge. I believe that would have been unthinkable without Lee.”
“To this very day,” Bill continues, “that notion of a limited sense of the impossible sticks with me, as evidenced by the project I am currently working on to completely rethink how we manage water to ensure we protect human health and the environment. I am not sure I would have understood that that was a real option without Lee’s influence.”
She was an effective leader who became a Great Lakes defender when men still assumed they ran the world and knew better. She did not give them an inch. Her legacy to the women of succeeding generations in the Great Lakes environmental movement is mammoth, but she also left the men—including this one—with appreciation of our place on this Earth, the need to cherish it, and the tools to protect it.
Jane Elder says, “Her passing marks the end of an era in the Great Lakes, but her legacy will live on for generations to come in the beauty of the dunes she loved, the sparkle of clear water on a Great Lake, and a new generation willing to love them and fight for them to keep these treasures alive and thriving.”
Dave Dempsey is the senior policy adviser at FLOW.
Although many believe Columbus discovered this land, there were many visitors to this land before him. After his arrival, life changed for the Anishinaabek. Even so, the first people were able to hold onto language, culture, and tradition. This is attributed to the seven generations before and to the resiliency and strength of the Anishinaabek.
Anishinaabek had thrived and lived our way of life for thousands of years. Many generations carried on this way of life and the stories that accompanied the teachings. One of those is respect. It comes in many forms and is expressed by everyone. You see it expressed through actions, words, and in our thoughts as we consider the choices we make in our life.
Respect is one of the most important teachings and must be understood in order to give and receive it. All cultures teach this, and Anishinaabek are no different. Our way of life taught us to respect all that is upon the earth: plants, animals, land, and the water. We do this to ensure that we have what we need and to think of the next seven generations.
Water is vital to our existence; it provides nourishment to human beings, plants, and animals. It is the lifeblood of Mother Earth. For those in the Great Lakes region, we are blessed to be able to live by the largest fresh water lakes in the world. How can we show our respect to the water knowing what we do?
We know the Great Lakes have many uses, like recreational uses of swimming, fishing, and boating, and the economical uses that include shipping freighters and commercial fishing. So how is it that we come to understand the importance of water and respect that it’s a natural gift to all people? How do we respect water in its natural state?
There are many people today who are standing up and speaking on behalf of water. It doesn’t matter where they come from or who they are, but what matters is they are reminding everyone to respect the water and to ensure she is here for many generations to come.
The Anishinaabek are grateful to the many people and organizations like FLOW who are providing education to the politicians, residents, community organizations, and businesses regarding water. It will take everyone to come together to discuss, learn, and share their knowledge about our Great Lakes. Each one of us has an important role in this effort.
JoAnne Cook is vice chair of FLOW’s Board of Directors and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. She is from Peshawbestown, Michigan.
Creative expression holds hands and swims with freshwater stewardship.
Breathtaking, life-sustaining water inspires art, and that art propels us to protect the Great Lakes.
The stillness, waves, clarity, and reflection of water give rise to poetry, music, paintings, dance, letters, and more. It’s a swirling, symbiotic, cyclical relationship that takes on many forms.
It’s poet, author, and avid standup paddleboarder Anne-Marie Oomen soliciting “Love Letters to the Lakes” from her community of writers across Michigan, and then presenting them in a live reading to the International Joint Commission, in hopes that heartfelt prose impacts public policy to protect the Great Lakes.
It’s “Mad Angler” poet Michael Delp and renowned cellist Crispin Campbell sitting together in an historic Michigan barn and performing an enchanting call and response about rivers flowing like veins through our bodies.
It’s artist Glenn Wolff painting a watershed, a town, a creek, and a bay, creating a tapestry to explain how groundwater beneath us is interconnected. It’s a dancer in a light blue chiffon dress delicately toeing the sand, always moving one step ahead of the lapping surf.
It’s Flint hip-hop artist and activist Amber Hasan rapping at Earthwork Harvest Gathering last month about the racism belying Flint’s lead water crisis. “Choppers keep flying ’round here / But people keep dyin’ I swear / I can’t drink the water, and I can’t afford the bills / If you’re sick of this s***, better pop another pill.” It’s music festival organizer and virtuoso Seth Bernard crooning a melodic ode to “Agua” in all its shapes, forms, and languages. “Clouds and rain and lakes it’s water / Mist and sleet and snow and vapor / Hail, hail it’s rising, falling / Flowing down down, ever lower / And up, up. Gathering together / Omnipresent life-maker / Two things bound together / Makes one life life force force giver”
It’s Higher Art Gallery in Traverse City inviting local artists to share water-inspired works for an “Artists for FLOW” showing that benefits our fight to protect that water. It’s an arts center in Glen Arbor inviting high school students next year to submit visual art that examines the question “who owns the water?”
“These waters are part of our DNA,” says FLOW executive director Liz Kirkwood. “We in the Great Lakes Basin are water people. The lakes, the rivers, and the groundwater inspire artists of every background. The water is what enlivens us and unites us.”
That is why FLOW is launching our “Art Meets Water” campaign this week highlighting the heart-felt creativity that inspires us to fight for our public waters and harness that for good. Check out our new “Art Meets Water” webpage to see Wolff’s groundwater tapestry, to read Oomen’s “Love Letters to the Lakes”, to watch Delp and Campbell perform “In Praise of Water,” and to learn more about the “Artists for FLOW” fundraiser at Higher Art Gallery, which continues until Nov. 5, with 10 percent of sales from the exhibit benefiting FLOW.
Embrace the water. Let it fill your creative spirit and fuel our shared fight for freshwater protection.
On these long, lazy September weekends when the forest hints of autumn but Lake Michigan clings to August, you’re reminded how water—and the myriad forms she takes—define your life as you float from chapter to chapter. She’s been with you on all the great journeys: from the brackish fjords of the old country, to the West African river that carries yam boats, to a volcanic lake in the Mayan highlands, even to the orifice-burning salt of the Dead Sea. She’s most forgiving here in these glacial freshwaters, the home to which you always return. She’s healing, too. Earlier this summer your friend scattered his mother’s ashes among these blue waves. She brings both joy and melancholy. If it’s true the eskimos have a hundred words for snow, perhaps we in Leelanau ought to have a hundred words for this lake…
Some seasons you frolic with her in new ways. You dance with her alone on night swims. When the lightning flashes, you dive into her waters, and then look up to see the sky alight. On a windless Thursday evening last you paddled across her glassy bay and chased a sailboat full of poets. You caught them and pirated their ship; they welcomed you with open arms, and prose, and beer and finger food. You learned, with some unease, that the hurricane ravaging the Carolinas had pushed this delightfully good weather north, to your benefit. (In another life, the odds will turn and you’ll be the one living on the low coast, battling tides and tropical storms— and they’ll have the inland serenity of the Great Lakes. So just enjoy it NOW, you reassure yourself!)
On the way back toward the harbor, when you’ve had a few drinks and your blood runs hot, her defense becomes your rally cry, your war call. Fight for her. Build a political manifesto around her. Turn candidates for office into foot soldiers who fight for her defense. Swear you’ll die for her. But also, live for her. Make love inside her depths. Write poetry with a stick along her shores. Do handstands and fall with abandon into her surf. Together with your child, document, day-by-day, how she (soon will) metamorphose into ice and back to water again. Gather wood and plan to stoke your hide in a lakeside sauna and take those screeching plunges into her frigid womb. Live to tell about it. Perhaps write a midnight poem about it. Above all, thank her every day.
Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit
Jim Olson, President and Founder
By Jim Olson
The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line 5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.
The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.
FLOW’s Amicus Curiae Brief was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana,and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).
“This is an important step in restoring the rule of law on Line 5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoid the Great Lakes.”
Background on Amicus Briefs
On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.
In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.
The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line 5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.
FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line 5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line 5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.
Lame-Duck Disaster and Side Deals
In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.
To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.
In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line 5 under the Straits.
Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line 5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line 5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line 5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.
New Leaders Apply the Rule of Law to Line 5
In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line 5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.
In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.
Underlying Legal Framework
Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:
The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.
In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.
When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.
You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.
As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan aim to keep it that way.
Although budget talks between Michigan Gov. Gretchen Whitmer and the state Legislature are strained at best — as the two sides appear deadlocked over road funding — it does appear her request for significant one-time funding for clean water for the fiscal year 2020 starting October 1 will survive the process, with some changes made to fit legislative priorities. On Tuesday, Sept. 24, the Legislature approved the water money and will send the bill to Whitmer’s desk for signature within a few days.
The action comes after a long delay in consideration of the Governor’s proposal. “Communities across Michigan are grappling with drinking water contamination, like toxic PFAS chemicals and lead from old pipes, yet discussion about it has been noticeably absent in Lansing as they work to pass a budget. Clean, safe drinking water is not a partisan issue and should be a top priority, not an afterthought,” said Lisa Wozniak, executive director of the Michigan League of Conservation Voters (LCV), earlier this month.
A House-Senate conference committee had sent a proposed appropriation for the Department of Environment, Great Lakes and Energy (EGLE) to the full State House and Senate. FLOW’s allies in Lansing at the Michigan Environmental Council and Michigan League of Conservation voters say the conference bill contains $120 million in one-time money for drinking water protection, including:
UPDATE: Governor Whitmer vetoed $15 million intended for dealing with PFAS at municipal airports on the grounds that a broader use of the funding for PFAS us needed.
$1.9 million and the equivalent of 10 staff positions for a drinking water compliance unit to provide technical assistance to communities on the lead and copper rule.
$5 million as a state match for federal drinking water revolving loan fund dollars.
$307,000 additional funding for contaminated site investigations.
An item of concern, added by legislators, is an earmark of $150,000 for the Environmental Rules Review Committee to contract with consultants. This committee was created by the Legislature and signed into law by former Governor Snyder to impede environmental rulemaking.
UPDATE: Governor Whitmer vetoed the $150,000 in funding for this committee.
The Governor also requested $60 million for school hydration stations to protect children from drinking lead-contaminated water, but so far the Legislature has not included the money in the fiscal year 2020 budget.
Dave Dempsey is the Senior Policy Advisor at FLOW.