Tag: amicus brief

FLOW joins amicus brief in Michigan Supreme Court CAFO case

By Carrie La Seur, FLOW Legal Director

My lungs remember. While I was an Iowa Environmental Protection Commissioner, I said yes to a chance to visit a relatively small hog confinement run, by the dad of one of my son’s best friends. It was just a few miles from our home in Mount Vernon, population 4,460, so I drove my old Celica out to the barns one frozen morning. I hadn’t been on another farm recently, and it was a small operation, so I didn’t have to “shower in” or put on different clothes, as many larger operations — also known as CAFOs, or Confined Animal Feeding Operations — require for biosecurity. We just walked through two sets of doors and stepped onto the steel grated floor of the hog barn.

If you’ve ever heard a pig squeal, you can imagine the effect of hundreds of pigs squealing, not in unison but total cacophony at the appearance of humans in their white-walled, tightly packed world. The smell hits just as hard, not so much the stink of manure as the nostril assault of pure ammonia from the urine pooled in vaults beneath your feet. My first instinct was not to breathe, then to take shallow, singed breaths, trying not to let the gas deep into my lungs.

We walked the full length of the barn, as the hogs rushed back and forth in their pens, Alan briefing me in steady, Iowa farmer tones on the life cycle of a confinement animal, the feed and medicine, waste handling, and the value of each pig to his bottom line, how carefully he watches them. This kind of small operation is unusual in the world of industrial livestock, where the number of farms has been dropping for decades, while the average size of an operation grows – and the size of its waste stream.

As a result, America’s farm country is adrift on a sea of manure. In Michigan alone, livestock confinements produce sewage equivalent to the state’s entire human population of 10 million, plus nearly another 4 million people. It’s like having Pennsylvania’s untreated sewage shipped to Michigan and spread on the ground and into our lakes, rivers, and streams. 

All this goes to explain why eleven organizations recently filed an amicus brief in litigation pending before the Michigan Supreme Court. Michigan Farm Bureau, a rich and powerful insurance company and lobbying agency masquerading as a grassroots ag group, is blocking the state’s efforts to control widespread water and soil pollution from livestock confinements. Our brief argues that no one is above the law, or the duty to protect Michigan’s waters for all of us.

Download and read the amicus brief (PDF)

FLOW and its many allies, from CAFO neighbors to trout fishers to city dwellers paying to clean up an uncontrolled wastestream delivered to them by rivers, have had enough. For too long, agricultural polluters have had a free pass and no accountability as we dump vast amounts taxpayer money into voluntary water quality measures that work only for a short time, or not at all. We’re looking for creative ways to fight back. Join us.

FLOW files amicus brief; urges Sixth Circuit Court of Appeals to remand Line 5 lawsuit back to state court

Read FLOW’s summary of the PLG Consulting report, Likely Market Responses to a Line 5 Shutdown



Traverse City, Mich.—Today, September 25, 2023, FLOW (For Love of Water) filed a motion with the Sixth Circuit Court of Appeals in the 2019 state lawsuit Attorney General Dana Nessel v. Enbridge, requesting the federal appeals court to accept an amicus brief that articulates why this case should be remanded back to state court where it belongs.

Built in 1953, Line 5 is a 70-year-old oil pipeline operating in fierce currents on the bottomlands of the Straits of Mackinac, where Lake Michigan and Lake Huron meet. The underwater pipeline has been repeatedly struck by ship’s anchors, and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.

Three years after the Attorney General filed the 2019 state lawsuit, Enbridge in a procedural tactic removed the case to the federal district court in Grand Rapids, Michigan. The federal district court refused to remand the case back to state court. The Sixth Circuit Court of Appeals accepted Attorney General Nessel’s request to appeal the district court’s ruling in July, and has directed the Attorney General and Enbridge to submit legal arguments on whether to remand the case back to state court in Michigan.

The waters and bottomlands are sovereign public trust resources held by the State of Michigan in trust for the benefit of the citizens of Michigan and the Great Lakes region. Long-standing legal principles that balance federal and state interests weigh in favor states’ rights and jurisdiction over public navigable waters and bottomlands.

As an advocacy organization committed to protection of the precious state sovereign water resources, FLOW has requested permission to file a “friend of the court” brief, technically called an amicus brief, to provide the Sixth Circuit Court of Appeals our unique perspective regarding its knowledge and experience of Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine. State courts are the sworn guardians with a responsibility to protect the public’s rights in and uses of navigable waters and submerged lands throughout the Great Lakes region. Our shared waters are a public trust, and it is the duty of our state governments to act as stewards of this trust, ensuring that the interests of current and future generations are safeguarded.

But for the State of Michigan’s conditional authorization under public trust law, Line 5 could not have been built on the bottomlands of Lake Michigan in the Straits of Mackinac. When the state granted an easement to Enbridge’s predecessor 70 years ago, it was subject to the perpetual duty and right of the state to assure the public trust in the Great Lakes is never impaired. The easement was never properly authorized, and in any event, is subject to revocation and termination when the public trust waters and natural resources are threatened with risks of devastating harm. In the absence of that authorization and in the face of this extraordinary risk, Line 5 can not continue to operate.

The Great Lakes Business Network (GLBN) alongside 60 Tribes and First Nations have filed two additional amici briefs supporting the Attorney General’s request to remand the Line 5 public trust case back to state court.