Photo: Rebecca Meuninck, Deputy Director of the Ann Arbor-based Ecology Center
By Dave Dempsey
The discovery of toxic per- or polyfluoroalkyl substances (PFAS) in many Michigan locations, the fear and concern these chemicals have stirred, and the difficulty posed to government officials and the public on how to respond feel familiar to those residents 50 and over. As the baseball player Yogi Berra once said, “It’s déjà vu all over again.”
PFAS are just the latest symbols of failed chemical policy in a chain reaching back to World War II.That policy has caused disease and death, ruined landscapes and waters, and cost taxpayers scores of billions of dollars.And still politicians haven’t learned.
A Look Back
A look back at Michigan’s history of dealing with chemical crises illustrates the point:
Mercury – When fish from the St. Clair River, Lake St. Clair, and the Detroit River were found to have alarmingly high levels of toxic mercury in 1970, the state had to shut down the Lake St. Clair fishery until it completed an exhaustive effort to trace and control the sources. Although much reduced, mercury emissions from coal-fired power plants and other sources continue.
DDT – After the state banned most uses of toxic DDT (dichloro-diphenyl-trichloroethane) in 1969 for its effect on fish, wildlife, and human health, it also had to ban several replacement chemicals in succeeding years.
PCBs – In 1971, investigators found surprisingly high levels of toxic PCBs in Michigan water bodies, including the Kalamazoo River.This led to a ban on the chemicals in the mid-1970s.
PBB & PBDEs– When toxic PBB, a flame retardant, was accidentally mixed with cattle feed in 1973, government responded slowly and the entire Michigan food chain was affected.Chemical companies replaced PBB with compounds like polybrominated diphenyl ethers (PBDEs), which were subsequently found to be toxic to fish, wildlife and people and were banned or phased out.
There are many more examples, the result of a policy that treats chemicals as though they have constitutional rights like people, “innocent until proven guilty.” It also treats them one at a time.
“We’re playing chemical whack-a-mole,” says Rebecca Meuninck, Deputy Director of the Ecology Center, based in Ann Arbor.The Ecology Center has been working to develop chemical policy reform for years and has successfully championed initiatives such as Michigan state government’s Green Chemistry program. The program’s objective is to foster use and development of new chemicals and chemical products that reduce or eliminate the use or generation of hazardous substances while producing high quality products through safe and efficient manufacturing methods.
The price of a piecemeal approach to chemical policy can be measured not just in damage to human health and the environment, but to taxpayer pocketbooks.Between the commencement of state-funded toxic cleanup program in the late 1970s and today — a 40-year period — Michigan citizens have shelled out more than $1.5 billion to handle cleanups of messes created by private parties.Created by everyone from small businesses to corporate giants, these toxic sites have become the public’s problem because many of the businesses involved have gone bankrupt or have chosen to contest their responsibility.
What can we do about this problem? We need a new national chemical policy that requires full testing and safety evaluation of chemicals before they are introduced to the market and to our air, water, and bodies.Although this is common sense, chemical manufacturers have successfully resisted these reforms through the political process.
Meuninck says legislation passed and signed into law by former President Obama in 2016 has the potential to help.Key provisions include:
A mandatory requirement for the Environmental Protection Agency (EPA) to evaluate existing chemicals with clear and enforceable deadlines;
Risk-based chemical assessments;
Increased public transparency for chemical information; and
Consistent source of funding for the EPA to carry out the responsibilities under the new law.
“These are important changes, but they’re only as good as the EPA that’s supposed to implement them,” Meuninck said.“Otherwise, it could go horribly wrong.”
A potential model for a new U.S. policy is the European Commission’s 12-year-old REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) regulation. REACH shifts the burden of identifying chemical hazards, means of mitigating hazards, and managing risk from government to business.
Among other things, REACH:
Places responsibility on industry to manage the risks from chemicals and to provide safety information on the substances. Manufacturers and importers are required to gather information on the properties of their chemical substances, and to register the information in a central database.
Calls for the progressive substitution of the most dangerous chemicals (referred to as “substances of very high concern”) when suitable alternatives have been identified.
“One of the main reasons for developing and adopting the REACH Regulation,” the Commission says, “was that a large number of substances have been manufactured and placed on the market in Europe for many years, sometimes in very high amounts, and yet there is insufficient information on the hazards that they pose to human health and the environment. There is a need to fill these information gaps to ensure that industry is able to assess hazards and risks of the substances, and to identify and implement the risk management measures to protect humans and the environment.”
But the European approach is far from becoming U.S. policy, despite the best efforts of skilled, effective public interest groups like the Ecology Center.It is difficult to say what chemical crisis might prompt needed change here at home.That change is badly needed — without another crisis coming first.
This is the second 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. FLOW will unveil the last two briefs in the coming months.
The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.
Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.
Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.
In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.
The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.
Report’s Key Facts
Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers.More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health.
Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative.The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.
Government’s Role in Protecting Human Health and the Environment
Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.
Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.
It is imperative that political leaders, policymakers, and citizens come to understand this critical association.
Above: An underwater image from Canadian oil transport giant Enbridge shows deep grooves in the Straits of Mackinac lake bottom, going up and over one of the twin Line 5 oil pipelines and leaving damage to the pipe’s outer coating, the result of an April 1, 2018, anchor strike.
(Photo: Enbridge via U.S. Senate)
By Jim Olson
The disclosure by Enbridge that 81 feet of Line 5 has been undermined by powerful currents and is slumping points to something far more serious—and dangerous: The 66-year-old dual pipelines in the Straits of Mackinac are failing and also at risk of rupture from a ship’s anchor drag that hooks and rips the pipeline wide open. It is also a violation of the law that governs the protection of the public trust in the Great Lakes and the soils beneath them.
Since at least 2001, Enbridge has known of these risky violations of the easement that the State of Michigan granted in 1953 to conditionally authorized Enbridge to pump oil through twin pipelines, and changed the pipeline’s design by adding anchor supports to shore it up.
At first, it was a few anchors, but between then and now, Enbridge has added a total of 202 supports that elevate 3 miles of dual oil pipelines that were designed to lay on the lakebed of the Straits. The former Michigan Department of Environmental Quality (MDEQ) under the Snyder Administration was an accomplice allowing the supports, but without requiring authorization under Michigan law based on a necessary risk, impact, and alternative assessment.
Rather, the MDEQ until now has looked only at the impact to the lakebed from the screw anchors, nothing more. In other words, a completely new design is being built in the Straits for this dangerous Line 5 that carries nearly 23 million gallons of crude oil daily, and the design has never been evaluated or authorized by the DEQ, now the Department of Environment, Great Lakes, and Energy (EGLE).
The State of Michigan now finally recognizes the greater risk of an anchor strike from the change in design; one dented the dual lines in three places in April 2018, and the State cited this serious risk in its lawsuit filed June 27 against Enbridge to shut down Line 5.
With 3 miles (almost 40 percent) of the Line 5 crude oil lines in the Straits now 2 to 4 feet above the lakebed, the next strike has a strong likelihood of hooking and rupturing the lines; causing a massive release that will devastate hundreds of miles of Lake Huron and Lake Michigan; shut down Mackinac Island, ferries, ships, drinking water, fishing, boating, and recreation; and destroy the habitat and ecosystem and economy for years to come—to wit: the Deep Horizons blowout in the Gulf of Mexico.
Fortunately, we have new leadership in Governor Gretchen Whitmer (call her office at 517-373-3400, or share your opinion here) and EGLE Director Liesl Clark (call her at 800-292-4706), who can correct this attack on the public trust rights of citizens in the Great Lakes, and restore the rule of law that was abandoned by the Snyder administration for 8 years.What should you do?Email or call Governor Whitmer and Director Clark , and urge them to take action immediately by sending a letter to Enbridge demanding it apply for authorization of this major change in design not covered by the 1953 easement, and never evaluated or allowed.
Jim Olson is FLOW’s Founder, President, and Legal Advisor.
Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.
By Kelly Thayer
Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).
Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.
While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required.The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.
“I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”
Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.
Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.
FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.
FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.
“It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”
In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional.In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.
Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.
“Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.
Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.
Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.
The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.
FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.
A standing-room only crowd in excess of 200 people—the largest on the IJC tour so far—voiced its concerns for threats to the Great Lakes: Enbridge Line 5, nuclear waste storage, invasive species, bottled water, plastics and privatization, and harmful algal blooms.But the most threatening concern, one that drives or is exacerbated by the others, was the elephant in the room: the unprecedented record high water levels, which are causing havoc throughout the Great Lakes region.
To get to the IJC listening session, I decided to walk from my office, a normally direct path along East Front Street to the steps leading down through the memorial to Dr. Jim Hall and his son Dr. Tom Hall’s memorial—fitting given their constant work and passion for water and conservation—to the walkway along the Boardman River and under Grandview Parkway.It’s typically a 5-minute jaunt to the resort.But on this day an orange warning sign stopped me: The river overflowed the walkway with more than six inches of water. So I backtracked and dodged the rush hour traffic on the Parkway to the opposite side, and made my way to the meeting.
Photo: The Boardman River washes over the boardwalk in downtown Traverse City in July 2019.
Historical water level records for the Great Lakes show a general span of around 30 years from a significant low-level to high-level period.This year’s swing to a record high-water level in June from a record low-water level in 2013 took only six years.This year’s precipitation in Traverse City is trending 10-percent above the average rainfall so far. Farm fields, homes, businesses, and coastal communities are flooded.Shorelines are gone or shrinking, while erosion, more sediments, and high-water levels have destroyed homes and public beaches or infrastructure. Recent reports on the climate change impacts in the Great Lakes Basin project a 30-percent increase in precipitation, or an increase of nine inches a year or a total of 43 to 44 inches annually in Traverse City.If the current record high 10-percent increase is already wreaking havoc, what will happen when the increase is tripled?
Climate Change already impacting the Great Lakes system
The startling hydrological effects of climate change already are causing significant impacts to the Great Lakes, tributaries, their shores, and communities.These effects and impacts only will worsen as the water balance and quality begin to change because of the changes in the hydrologic cycle and watersheds, threatening massive destruction of natural resources and human habitats. It will amount to billions, if not trillions, of dollars in damage—perhaps the closure of Chicago’s fabled lakeshore trail and other waterfronts, the closure of water-dependent nuclear power plants, wetlands-turned-lakes, floodplains-turned-wetlands, flooded farmlands useless for crops, overwhelmed public water and sewer infrastructure. The list goes on and on—shoreline property damage, loss of beaches for swimming, health threats from flooded sewage, failed stormwater and erosion infrastructure, damage to state park and other public harbor and shoreline facilities, and runoff from contaminated properties all flowing into the Great Lakes.
How will people, communities, businesses, and natural systems cope with these water flows, levels, and loss of coastline, property, infrastructures, and public and private uses?All I had to do to make the meeting was dodge through traffic on Grand View Parkway.No big deal, right?Will the affected interests simply accept the loss and adjust, paying the millions or billions to adapt infrastructure and facilities or private homes? Will the governments fund adaptation programs to move or redesign harbor and waterfront facilities and other infrastructure?Will governments here and across the world revisit the Paris Climate accord, and finally reduce greenhouse gases along with massive expenditures to adapt and become resilient, necessary because reduction of greenhouse gases will only mitigate not prevent the oncoming damage?According to the most recent October 2018 Report from the UN International Panel on Climate Change, nations, states, and people have only a decade to take every possible action to stem and reduce the inevitable effects and impacts of climate change.
Climate Change pushing legal and policy frameworks to the limit
In addition to the oncoming harm and untold damage, the legal and policy regimes that protect the Great Lakes, and which all of us in the Basin and beyond support, are threatened—pressed to their limits is more like it. These include the Boundary Waters Treaty that set up the IJC in 1909 to protect water levels and prevent pollution of the Great Lakes; the Great Lakes Water Quality Agreement that safeguards ecosystems, water quality, health, and recreation; and the Great Lakes Compact and a parallel agreement among the Great Lakes states and the provinces of Ontario and Quebec.
For example, the 1909 Treaty prohibits diversions out of four of the five Great Lakes that affect water levels without a rigorous review and approval by the IJC commissioners (Lake Michigan is not an international water even though, hydrologically, Lakes Huron and Michigan are one lake).We think of “diversions” as human-made transfers of water into or from a river or lake (sometimes groundwater) system from a dam, reversal of a river, a pipeline, or a drainage canal–such as the Chicago diversion out of Lake Michigan waters to the Mississippi River, or the Long Lac and Ogaki-Lake Nipigon diversions into Lake Superior that would otherwise flow to Hudson Bay, or Erie Canal out of Lake Erie across New York to the east coast. In each instance, the IJC, guided by water-level study boards, determines the effect on the levels of the Great Lakes to prevent adverse impacts to ecosystems, harbors, shipping, fisheries, public infrastructure, hydroelectric dams, recreation, and riparian public and private property.
But extreme changes in climate from the failure to reduce greenhouse gases now threaten to remove water into or out of the Basin far beyond what the IJC typically controls. Climate change or the Anthropocene was not on anyone’s mind when the Treaty was signed in 1909.The drought and record low levels 6 years ago diverted more water out of the lakes and this year’s increasing precipitation and record high levels are as much of a diversion affecting levels as a dam, canal, or pipeline. Unlike proposals to divert water on one side of the international boundary, these extreme weather events whipsaw the lakes and their ecosystems, causing serious ecological, infrastructure, property and economic damage on both sides of the border.
Climate Change is a diversion of water
For another example, the Great Lakes Compact bans human-made diversions of surface and groundwater outside the Great Lakes surface divide or boundary. The purpose of the ban is to protect the waters to assure a sustained quality of life and economy within the Basin.There are only a few narrow exceptions—diversions necessary for public water supplies in communities or counties that straddle the Basin with the requirement of treated return flow, emergency and humanitarian single-objective proposals, and the so-called “bottled-water loophole.”The Compact defines a diversion as a “withdrawal of water by human or mechanical means that is transferred from the waters in the Basin to a watershed outside of the Basin”—including the attempt of the Nova Group in 1999 to ship 156 million gallons of lake water a year in a tanker transport to China, the failed attempt several decades ago to divert water from Lake Michigan to the coal fields of Wyoming, or the oft-feared pipeline or diversion down the Mississippi River to save the Southwest or Ogallala Aquifer from overuse and drought.
But what is the difference if human-made mechanical means or uses heat up the atmosphere, which increase evaporation and precipitation, affects the jet stream, and whiplashes areas of the planet between drought and deluge? If we look at the water cycle as a single hydrologic system, which it is, the Great Lakes are an arc of the whole water cycle. We life in a hydrosphere. What happens to one arc of the cycle affects the water levels in the other arcs.Climate change is as much a diversion of water into and out of the Great Lakes Basin as any other human conduct.
Fortunately, both the IJC in its charge to protect water levels and prevent pollution under the Treaty of 1909 and the Council of Great Lakes Governors and Regional Body (governors of eight Great Lakes states and premiers of the provinces of Ontario and Quebec) are aware of the effects and impacts of the climate crisis, and have at least advisory, quite possibly regulatory, authority to address the threats of climate change to the Great Lakes.It would be irresponsible and impossible for any of these governing boards to ignore the effects of climate change on water level or water quality decisions that affect the waters of the Great Lakes Basin in the future. The IJC already has issued a report and warning on the coming effects from extreme weather; sections of the Compact require that direct and cumulative effects from climate change be taken into account, including authority to modify interpretations and application of the principles and standards.
The ban and narrow restrictions on diversions are premised on the fact that the Great Lakes and tributary waters are essentially non-renewable; that is, based on the historic normal ranges of highs and low levels of the Great Lakes, there is really no water to spare for diversions elsewhere.While this may hold true for the normal range of flows and levels in the Basin and its watersheds, it will not hold true for unprecedented increases in flows and levels, such as the highs experienced this year. Strangely, there is suddenly too much water, and it is directly attributable to climate change.If the Compact is designed to keep water in the Basin from demands from regions experiencing drought or water scarcity outside the Basin, what happens when the effects and impacts of climate change push water levels above normal flows and levels and cause or threatens devastating ecological, economic, infrastructure, and public health impacts and losses?Should water be diverted or in-flows reduced or reversed on an emergency basis? If so, on what terms, when, and for how long?
In short, there is not only an ecological crisis, but also a law and policy crisis, and there is an urgent need for action.
The Boundary Water Treaty of 1909
The Boundary Water Treaty vests authority in the IJC to regulate and take other actions, such as reviewing actions that affect water levels and preparing and publishing references, reports, and guidelines to protect and manage Great Lakes water flows and levels (quantity) and pollution (quality); the Treaty prohibits any diversion “affecting the natural level or flow” of water unless authorized by both countries and through the IJC. The Treaty also specifically recognizes that our international boundary waters are a shared commons to be kept and managed for navigation, travel, fishing, hydropower, and other public and private uses and enjoyment for public and private purposes consistent with the principles of the Treaty and laws of both countries.
The Great Lakes Water Quality Agreement of 1972, 1978, 1987, and 2012
The Great Lakes Water Quality Agreement (GLWQA) charges both countries—Canada and the United States—with a responsibility to protect the water quality of the Great Lakes from substances caused by human activity that adversely affect aquatic life; prevent debris, oil, scum and other substances that impair water quality and uses; and protect these waters and ecosystems against nuisance and toxic substances. The GLWQA also has established a protocol to address the existing and emerging effects from water flows and levels, including the significant increases in flows and levels from climate change. According to a former Senior Policy Advisor to the IJC, “this is critical because the IJC’s mandate is the only place where both water quantity and water quality come together in the Great Lakes Basin.”
The U.S. Common Law Public Trust Doctrine or Canada’s Right of Navigation and Fishing Doctrine
The legal regimes of both countries recognize a government obligation based on trust principles to protect navigation, boating, fishing, drinking water and sustenance, and related uses of the navigable waters within their countries and states or provinces. This trust protects these uses from interference or impairment, now and for future generations. The public trust doctrine provides a practical tool to evaluate and guide decision-making based on the existing and emerging effects from hydrogeological and land use watershed systems. The public trust standards that protect the waters and public and private uses from impairment provide the legal framework and process to embrace complex scientific evidence and to craft transboundary policy solutions that contemplate dynamic climate effects and various climate scenarios.
Over the past five years, the IJC has recognized and recommended implementation and application of the public trust doctrine as a framework or “backstop” set of principles to address the growing harms and threatened impact and impairment to the waters, ecosystem, and human use and enjoyment of the Great Lakes. These include the IJC’s 2014 Lake Erie report on Lake Erie algal blooms, the 2015 IJC 15-Year Review on Protection of the Great Lakes, and the 2017 Triennial Assessment of Progress under the Great Lakes Water Quality Agreement.All three reports warn us of the “looming” threat to water quality, water resources, health, and quality of life in the Basin. And the Compact declares that the “waters of the Basin are precious public natural resources held in trust,” and are part of an “interconnected single hydrologic system.”
Click here to read FLOW’s full proposal formally submitted today to the International Joint Commission calling for an emergency pilot study. Click here to read a summary.
Pierre Béland, IJC Commissioner and Canadian Chair, addresses the audience July 24, 2019, in Traverse City. Photo by Rick Kane
Because science-based approaches or models now can isolate or identify the intensified effects from climate change, governmental bodies, like the IJC and the Council of Great Lakes Governors or the parallel Regional Body, can discern cause, effect, and solutions tied to identified flows and levels linked to climate change, and at the same time continue to address effects from human activity within the historical normal range of flows and levels within the Basin. This approach will provide a responsive, proactive institutional process to prevent or minimize catastrophic consequences caused by, or scientifically attributable to, climate change.
This “emergency pilot study” would develop the protocol for the IJC to separate effects and impacts on levels within the normal range of water levels and those dynamic and variable effects beyond the normal range of flows and levels caused by climate change. For another example, the IJC and Council of Great Lakes Governors and Regional Body, who are responsible for critical decisions on major exceptions to the diversion ban or consumptive uses, can separate the effects from climate change to assure that decisions are based on the changing and dynamic nature measured by scientific evidence, and on public trust-based analysis and decisions. In addition to human-made transfers of water in and out of the Basin, it is now scientifically established that climate change constitutes one of the largest, if not the largest, effects on flows and levels of water in the Great Lakes and Basin. In physical terms, climate change can either intensify the diversion of water outside the Basin or into the Basin.
At the moment, there is and will be tremendous pressure on governments and decision-makers to rid the Basin of “too much water.” When water levels have or will likely rise above normal levels, the effects and impacts can be predicted and proactive actions taken. The IJC and governments (provinces, states, and communities) must act swiftly before decisions are made that are wrong, with serious consequences, or decisions that establish precedents that destroy or undermine the Great Lakes Compact, Great Lakes Water Quality Agreement, and other laws and protocols regarding the withdrawal, use, or diversion of water. By establishing a solution-based approach using real-time scientific evidence and climate forecasting coupled with a public trust framework, governments and decision-makers will be better equipped to make the right emergency or long-term decisions, not only for “too much” water, but when there is too little.
Governmental bodies will be able to make immediate, timely, responsive decisions based on models and actual and predicted rises and their impacts. In turn, these decisions can be evaluated within current institutional regimes, like the Compact or Boundary Waters Treaty, or through a new agreement, process, or guideline, using the public trust principles of accountability and the duty to prevent and minimize and protect waters and uses from impairment or interference. For example, faced with extraordinary water levels and catastrophic damage, could water be “diverted” out of the Basin on a temporary basis as a “humanitarian” exception in the Compact? Could existing diversions of water into the Basin—like the Ogaki-Nipigon or Lake Lac—be temporarily reversed or reduced? Can this be tied to climate change effects to avoid precedents that would undermine the integrity of the Compact, the Boundary Waters Treaty, and/or Great Lakes Water Quality Agreement?
The IJC has a unique opportunity to engage in a pilot study right now, to bring into being solutions and a framework to implement adaptive and resilient measures to prevent or reduce the effects and impacts to all of us—our lives, health, quality of life, and economy—attributable to climate change. Now is the time.
The International Joint Commission (IJC) has appointed Liz Kirkwood, Executive Director of FLOW, to a two-year term on the Great Lakes Water Quality Board. Kirkwood will fill an at -large seat.
The 28-member board is the principal advisor to the IJC under the Great Lakes Water Quality Agreement. The Board assists the Commission by reviewing and assessing the progress of the governments of Canada and the United States in implementing the Agreement, identifying emerging issues and recommending strategies and approaches for preventing and resolving complex challenges facing the Great Lakes, and providing advice on the role of relevant jurisdictions to implement these strategies and approaches.
GLWQB members include an equal number of Canadians and Americans with representatives from the federal, state and provincial, and municipal governments, Indigenous nations, tribes and Métis, business and nongovernment organizations, and at large or public representatives.
“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said.
Kirkwood has directed FLOW since 2012. An environmental lawyer with 19 years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally, Kirkwood worked for USAID in Thailand as an environmental attorney to implement a regional environmental governance, water, and sanitation program in Southeast Asia. She also worked as an environmental litigator at Farella, Braun & Martel in San Francisco where she represented clients on natural resource and energy related matters. Kirkwood graduated from Williams College with a degree in Environmental Studies and History, and received her J.D. and Environmental Certificate from Lewis & Clark Law School.
The IJC was established by the 1909 Boundary Waters Treaty between the US and Canada.
Photo: Bryan Newland, chair of the Bay Mills Indian Community, addresses the 2019 Mackinac Island Community Forum.
By Jacob Wheeler
During conversations at a home on the West Bluff of Mackinac Island on Friday afternoon, July 19, summer resident Susan Lenfestey described what she had learned at a previous community meeting about the immediate consequences if Line 5 ruptured and an oil spill in the Straits of Mackinac.
The municipal water plant would have to be shut down immediately to prevent oil from getting into its pipes and filters, and an immediate and unprecedented evacuation of the island would ensue because of the oil flowing from the pipelines underwater west of the Mackinac Bridge.
The island’s residents, thousands of seasonal workers, and deluge of tourists would all need to flee for mainland Michigan. Soon, however, the oil would engulf Mackinac Island and stop all boat traffic, stranding passenger ferries from Shepler’s and Star Line in Mackinaw City and St. Ignace. Small aircraft landing on the island’s small strip would be the last resort for evacuating masses of people.
The cherished horses—an iconic presence and primary source of transport on this automobile-less island—would be left behind, at least initially.
“That really hit home when people realized what that would mean on a hot summer day, with thousands of tourists camped out in Marquette Park, not to mention no water for the approximately 500 horses on the island,” said Lenfestey. “A question followed about what would a spill would mean in the winter? How would there be a clean up under the ice? The answer: ‘No idea.'”
Gasps were audible among those gathered, suggesting that some hadn’t fully considered the true magnitude of what a spill from Enbridge’s old and decaying pipes would mean for the island, which is adored not just by residents, but by people all over Michigan.
The Mackinac Islanders who earlier that day attended FLOW’s sixth annual Community Update on Line 5 at the local Community Hall were an economically and politically diverse crowd. What united them was a concern over Line 5, and a desire to learn from FLOW and tribal representatives, lawyers, and risk experts about this sunken hazard in the fragile Straits of Mackinac — and how we are pressuring the State of Michigan to restore the rule of law and shut down Line 5 before an oil spill happens. FLOW has been working with Mackinac Island residents for six years on this issue because they’re at the epicenter of the threat of a Line 5 oil spill.
Lenfestey credited FLOW for its rational, fact-based and evidence-based approach to fighting this battle.
This year’s Community Update featured a welcome by George Goodman, board chair of the Mackinac Island Community Foundation, which co-sponsored the event. The welcome was followed by an introduction by FLOW executive director Liz Kirkwood and a synopsis by FLOW founder and president Jim Olson of the legal fights playing out on multiple fronts. FLOW board member and international risk expert Rick Kane followed with a tutorial about the logistics and economics of oil pipelines, soundly debunking Enbridge’s falsehood that shutting down Line 5 would deprive Upper Peninsula residents of propane or Detroit Metro Airport of jet fuel). And Bryan Newland, chair of the Bay Mills Indian Community, delivered a rousing speech by about what Mackinac Island means, spiritually, ecologically, and legally, to Native peoples of the Great Lakes.
Newland describe the Anishinaabek story of the great flood over the earth and how the Creator then recreated land and put it on the back of a turtle. The Anishinaabek word for turtle is “Mackinac.”
“Right here on this island is where our story tells us this happened,” said Newland. “If the pipelines were to burst, if oil were to wash upon these shores, it would degrade the very place where we say that life was reborn.”
Attendees of the Community Update engaged the presenters with important questions such as whether Enbridge is “winning the PR campaign.” The Line 5 owner/operator is spending millions of dollars on an advertising and disinformation “Chicken Little” campaign around the state—from billboards in the Upper Peninsula, to full-page advertisements in regional newspapers, to the aforementioned, hyperbolic, oversimplified narrative that shutting down Line 5 would affect statewide fuel supplies.
The excitement when packing for a trip to the beach is palpable; we select our favorite sun hats, towels and snacks while our children gleefully nestle toys and buckets for sand castles into the day bag. We hope that the sun will shine bright and Lake Michigan not be too frigid or choppy; and we expect that the beach where we recreate and relax will be clean and safe for our families.
The reality is that many of our Michigan beaches are sullied by refuse and littered with food wrappers, soggy cigarette butts, and small plastic pieces of mysterious origin. In an extreme case, Sleeping Bear Dunes National Lakeshore staff found thousands of pieces of broken glass deliberately spread in April on the Lake Michigan beach near the Good Harbor picnic area.
Whether littered on-site or carried from elsewhere in the watershed, unsanitary garbage on our coasts puts-off beach-goers and infringes upon the public’s right to enjoy the shoreline—a great Michigan summertime tradition that’s protected by the public trust doctrine.
Upon entering a body of water, these bottle caps, balloon fragments and straws tangled in summer berms pose another danger to the health of wildlife and people, threatening public trust uses as waves, wind and sun break down materials into small pieces called “microplastics”. Microplastics are known to be harmful to wildlife and are present in Great Lakes drinking water. The prevalence of plastics on our shorelines and in our waters has prompted local beach cleanup efforts.
Microplastics Present in the Great Lakes
The general awareness of plastic pollution in earth’s oceans (and scientific study of the issue) currently exceeds the awareness and scientific understanding of the effects of microplastics (including microfibers) in the freshwaters of the Great Lakes. As USGS put it, “the microplastics story is large and complex”.
But we do know that microplastics are present in our waters.
A United States Geological Survey (USGS) page based on a 2016 study emphasized that one plastic particle per gallon of water was found in Great Lakes Tributary Water; 1,285 particles were found per square foot in river sediment. 112,000 particles were found per square mile of Great Lakes water. Since 2016, plastics have continued to accumulate in the Great Lakes.
Microplastics and Wildlife, Human Health
The Great Lakes support a multitude of wildlife; aquatic insects, fish, amphibians, reptiles, birds; and provide drinking water for approximately 40 million people human and non-human species alike, we all need water to survive; our health is interconnected within the hydrosphere.
Freshwater and marine aquatic wildlife have displayed ill effects from ingesting microplastics. According to National Geographic, “Experiments show that microplastics damage aquatic creatures, as well as turtles and birds: they block digestive tracts, diminish the urge to eat, and alter feeding behavior, all of which reduce growth and reproductive output. Their stomachs stuffed with plastic, some species starve and die.”
Chemical harm from ingesting microplastic causes further concern. Heavy metals, flame retardants and antimicrobials which adhere to plastic surfaces have been associated with endocrine disruption in humans and cancer (via National Geographic).
Since the composition of plastic materials varies greatly, estimating toxicity of plastic is difficult, as is predicting toxicity as chemicals move up, through the food web; and eventually to us, through consumption of wildlife (via National Public Radio).
We who drink Great Lakes water are ingesting microplastics through our taps. So miniscule in size, microplastics pass through water treatment facilities and into our cups. Microplastics are even turning up in beer brewed from Great Lakes water.
Opting for bottled water may not decrease the risk of ingesting microplastics; in fact, total microplastics in bottled water are evidenced to exceed microplastics in tap water.
Performing beach cleanups supports our community’s right to enjoy our shorelines and can prevent the introduction of some plastics into the Great Lakes. Alliance for the Great Lakes reports that every year, through its “Adopt-a-Beach” program, “15,000 volunteers hit the beach and remove about 18 tons of trash.”
Seefried and Depauw collected a total 24.36 pounds of trash during their June 1 cleanup at Bryant Park in Traverse City. Local organizations supported the initiative; collection buckets were provided by the Grand Traverse Bay Watershed Center. Volunteers, equipped with gloves and data sheets, combed the shoreline public park and, over an approximate area of 550 feet, removed 707 cigarette filters, 236 foam pieces, and 459 plastic pieces. “When you’re actually on the ground picking it up, there’s kind of a ‘wow’ factor—of how much is actually there,” said Seefried.
A June 29 cleanup performed at Sunset Park yielded 387 cigarette butts, 227 pieces of small foam, and 253 small plastic pieces. Seventy-five food wrappers were also picked up over the area of 261 feet. At the end of the process, 11.7 pounds of trash no longer littered the park—an immediate benefit to the community.
FLOW can equip you with beach cleanup kits (containing items such as gloves, pencils, clipboards, data sheets, trash bags, and buckets) to use independently. FLOW’s Lauren Hucek encourages anyone interested to rally their friends, families, and coworkers to host their own beach cleanups. Please choose sites that offer public waste receptacles or prepare to dispose of trash privately; recycle when possible. Email Lauren Hucek with questions and requests for kits, or call the FLOW office at 231-944-1568.
Plastic is so ingrained and pervasive in our systems, can the independent effort of individuals cleaning beaches make any difference? Are beach cleanups effective?
“Honestly, I think we take the beaches in our area for granted a little bit,” said Seefried. “The point of this work is to clean the beach—but also to raise awareness.”
We know that plastics are in our water—and in our bodies. We know that microplastics are harmful to wildlife, and that it is not understood how they may be harmful to people. But there’s something about actually picking through the refuse on our beaches that sticks with us; we wonder, will a fiber of this cigarette butt; this lost sock; this disposable diaper; one day slip down someone’s throat via a glass of drinking water?
Performing beach cleanups prompts us to consider our own choices and to get involved with the overarching threat to Great Lakes water, wildlife, and our own health—plastics.
Photo: the rogue buffalo walking through Otwell’s campsite.
By Bob Otwell, FLOW Board of Directors
This past spring my wife Laura and I travelled to the Southwest to camp, see new sights, and leave the snow behind. We stayed at two very nice state parks in the Texas panhandle, with hiking trails through canyons cut by the Prairie Dog Town Fork of the Red River. At Caprock State Park, there exists a large, free-ranging buffalo (bison) herd. These buffalo are descendants of the last members of the wild herd that used to roam the prairies and numbered 30 to 60 million animals in the 1800s.
On our first evening, we were walking to the restrooms at our campsite, and a huge buffalo stood in the way along a narrow trail. We backed up slowly and went elsewhere. When we came back to our campsite, this buffalo was standing next to one of the nearby water spigots, with the water on full blast. He would put his face in the water, and just enjoy it cooling his body as he rotated around. After about 30 minutes, he wandered off. Being the good water conservationist I am, I then walked over and turned the water off.
First thing in the morning, I went to the park headquarters and told them the amazing story of this creative bison. They laughed, and said that this is not uncommon, and in the summer, sometimes several of the spigots will be on all night, and drain their reservoir down to empty. The buffalo wiggle their bodies against the T-handle valve lever until the water turns on. Say what? What clever, resourceful animals. And the humans? Not so much.
This part of Texas utilizes the nation’s largest aquifer, the Ogallala (High Plains) for drinking water, industry and agriculture (irrigation). The Ogallala serves eight states, and water levels have dropped over the years, down as much as 150 feet in Texas.Water levels are dropping because the water is being utilized at unsustainable rates. The groundwater is not replenished by annual rainfall. Canyon, Texas, a small city near the head of the canyons, and a former home of the painter Georgia O’Keefe, is part of a larger study that is looking at ways to reduce water use to preserve this important aquifer.
Well, to help out, it took Laura and me about a minute to come up with a solution for Caprock State Park: replace the T-handle water valve levers with round ones the buffalo cannot open. But this little solution does not address the larger problem: many folks, including state employees, have their heads in the sand when it comes to solutions that will prevent future catastrophes like running out of water. Unless people in the West start seriously restraining their unlimited development and deal with declining water levels, they will soon be eyeing our bulging Great Lakes to solve their self-induced problems.