History will mark 2021 as the year the United States finally got serious about combating climate change and protecting water security.
The Biden administration appears to fully comprehend the depth and gravity of current climate trends and is prepared to take action commensurate with the challenges we face. The Biden transition team has already developed detailed plans integrating consideration of climate impacts into the federal government’s core mission, programs, and policies.
The Biden Plan for A Clean Energy Revolution And Environmental Justice is a call to immediate action, using existing federal agency resources and tools to jumpstart efforts to accelerate deployment of clean energy technologies, reduce greenhouse gas (GHG) emissions at their sources, and adopt agricultural and public land management practices that sequester carbon.
“Every dollar spent toward rebuilding our roads, bridges, buildings, the electric grid, and our water infrastructure will be used to prevent, reduce, and withstand a changing climate.
– Biden Climate Plan
The climate crisis is time critical.
As the global economy continues to pump billions of tons of carbon dioxide and other greenhouse gases into the atmosphere, the window of opportunity to avoid the most catastrophic effects of climate change is rapidly closing. Climate science tells us that the warming effects of GHGs persist in the atmosphere, and the cumulative loading of these pollutants will soon increase global temperatures more than 1.5 degrees Celsius — unless we take immediate action.
The last four years brought federal policies aimed at increasing the development and use of fossil fuels, exacerbating the crisis and squandering precious time. Decarbonizing the global economy is now an existential imperative.
“Precisely because we’ve waited so long to take any significant action, physics now demands we move much faster than we want to.”
– Bill McKibben, founder of the grassroots climate campaign 350.org
That is why the incoming Biden Administration’s climate plan is so important.
The Biden plan represents a radical departure from status quo policies that created the climate crisis. Key directives include:
Achieving a 100% clean energy economy and net-zero emissions no later than 2050 with an enforceable 2025 interim goal.
Committing that every federal infrastructure investment should reduce climate pollution and requiring any federal permitting decision to consider the effects of greenhouse gas emissions and climate change.
Banning new oil and gas permitting on public lands and waters, demanding a worldwide ban on fossil fuel subsidies, eliminating international financing of dirty energy, and “naming and shaming global climate outlaws.”
Requiring public companies to disclose climate risks and the greenhouse gas emissions in their operations and supply chains.
Developing rigorous new fuel economy standards aimed at ensuring 100% of new sales for light- and medium-duty vehicles will be electrified.
Designing a framework to limit greenhouse gas emissions related to land use, forests, and agriculture and promulgating new standards for the greening of manufacturing, mining, and tourism.
Protecting biodiversity, slowing extinction rates, and helping leverage natural climate solutions by conserving 30% of America’s lands and waters by 2030.
Implementing community-driven approaches to develop solutions for environmental injustices affecting communities of color, low-income, and indigenous communities.
Effectively attacking climate change entails eliminating the carbon contribution of the global energy system, reforming land and water management practices, and greatly enhancing the capacity of government to mitigate and adapt to climate change. It also requires putting science first and recognizing that the earth’s hydrosphere is one inextricably interconnected global system — a “commons” upon which we all depend that must be protected by the government as a public trust and managed using the best science available.
FLOW has long advocated broad application of the Public Trust Doctrine as a framework for recognizing that the atmosphere, land, and water is one dynamic, integrated natural system upon which the health and vitality of all life depends. FLOW’s efforts to shut down Line 5 are motivated not only by the need to protect the Great Lakes — the largest and most valuable freshwater system in the world — from a catastrophic pipeline failure, but also by the recognition that continued long-term investment in fossil fuel infrastructure is inconsistent with our responsibility to protect the planet.
FLOW’s approach to advancing policy to protect our Great Lakes has been ambitious and cutting-edge. We have advocated for broad application of the Public Trust Doctrine as a legally required fiduciary duty of government to protect the common interest in public trust resources for the benefit of all citizens.
FLOW has been steadfast in carrying out its mission, and today FLOW’s successes have measurably enhanced state, federal, and international governance to better protect the environment:
In response to FLOW’s advocacy, the International Joint Commission has embraced the Public Trust Doctrine as the management framework for protection of Great Lakes waters.
FLOW’s constant efforts to prevent commodification of water by private corporations have successfully pushed back on efforts to expand water extraction for private sale.
Most recently, Michigan Governor Gretchen Whitmer and Attorney General Dana Nessel have moved to shut down Line 5, the 67-year-old oil pipeline that presents a clear and present danger to our environment and our regional economy. As advocated by FLOW, the Governor’s and Attorney General’s legal actions arebased upon the application of the Public Trust Doctrine.
FLOW commends the Biden Administration’s unprecedented efforts to address the climate crisis. We will continue to advocate for science-based, state-of-the-art policy, and we will continue to coordinate and collaborate with local, state, and federal agencies and commissions in implementing efficient, effective climate solutions.
FLOW on Nov. 6, 2020, filed an appeal with the Michigan Public Service Commission of the October 23 decision by Administrative Law Judge (ALJ) Dennis W. Mack granting in part Enbridge Energy Limited Partnership’s motion to exclude critical evidence from consideration by the MPSC in deciding whether to permit the siting of Enbridge’s proposed Line 5 oil pipeline tunnel through public trust bottomlands under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
FLOW’s appeal seeks to allow evidence that the proposed, roughly four mile-long oil pipeline tunnel under the Great Lakes would commit the citizens of Michigan for another 99 years to the unnecessary generation of more harmful greenhouse gases. According to the Michigan Department of Health and Human Services, greenhouse gas emissions already have resulted in the impairment of Michigan’s public health and natural resources – effects that will get worse unless CO2 emissions are abated.
Nothing less than the authority of the MPSC to protect the people of Michigan, environment, climate, and public interest of the citizens of Michigan and the Great Lakes for years to come is at stake, according to arguments filed by FLOW and other intervenors and made orally at a September 30 hearing.
“Authorizing a billion-dollar fossil fuel infrastructure project is fundamentally at odds with what science tells us must be done to avoid the most catastrophic effects of climate change,” said Liz Kirkwood, executive director of FLOW, a Great Lakes public trust law and policy center based in Traverse City. “Eliminating the determination of ‘public need’ when granting a Certificate of Necessity makes no sense.”
FLOW’s appeal also contests the ALJ ruling that the MPSC need not make a finding of “public need” to transport up to 8 billion gallons of oil a year for nearly a century in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. The pipeline tunnel proposed by Enbridge is inseparable from the business of transporting oil through existing Line 5, the Candian company’s 67-year old pipeline that runs from Superior, Wisconsin, through Michigan and on to refineries in Sarnia, Ontario.
Several market indicators suggest that investment in new pipeline infrastructure is highly questionable in light of clear trends indicating a precipitous drop in oil consumption in future years. Analysis released on August 9 by BNP Paribas, the world’s 8th-largest bank, reports “that the economics of oil for gasoline and diesel vehicles versus wind-and solar-powered EVs [electric vehicles] are now in relentless and irreversible decline, with far-reaching implications for both policymakers and the oil majors.”
FLOW is joined by several other intervening parties in the case in appealing to the three-member MPSC to overturn the ALJ ruling. Lawyers filed a joint appeal on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and National Wildlife Federation, as well as a joint appeal on behalf of the Environmental Law & Policy Center and the Michigan Climate Action Network. Bay Mills Indian Community also appealed. Attorney General Dana Nessel also sought to support and join in the appeals filed by the groups and tribes.
FLOW’s appeal requests that the MPSC:
Reverse the ALJ’s granting of Enbridge’s motion to exclude evidence of public need and likely environmental effects and alternatives related to the new tunnel and tunnel pipeline and the intended purpose of the tunnel project to engage in business and operations to transport crude oil as part of the tunnel project and the existing Line 5 in Michigan; and
Remand to the ALJ to take appropriate action to incorporate the excluded evidence into the discovery and evidentiary hearing that will be submitted as a full case to the MPSC for final decision and order.
“We’re talking about water, climate, and the plummeting demand for crude oil,” said Jim Olson, FLOW’s founder and legal counsel. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project breaches the state’s duty to protect the public trust in the Great Lakes and is not good for the climate or Gov. Whitmer’s goals as the nation and world turn to clean energy for survival,” said Kirkwood.
Many groups, including FLOW and Oil & Water Don’t Mix, have articulated scientific and legal deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
In more details, FLOW’s appeal asserts that:
The ALJ erroneously restricted the Broad Authority of the Commission under Act 16 by excluding review of the new or extended business and operations to transport crude oil through the new tunnel and pipeline.
The exclusion of evidence of “public need” under Act 16 is contrary to the law and deprives the parties the right to introduce evidence on questions of fact related to public need.
The State of Michigan has made new commitments to integrate climate change into government decision-making.
The duty to consider and/or determine the likely effects and alternatives under the Michigan Environmental Protection Act (MEPA) and its case law applies to the new tunnel and tunnel pipeline, and the intended purpose to extend the business and operations of Enbridge to the Straits and all of Line 5.
MEPA requires an evaluation of feasible and prudent alternatives, including a “no action” alternative.
Enbridge’s giant tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan connects to Lake Huron.
On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.
Points to Make in Public Comments by Oct. 19
FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:
Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
Not good for the climate or Gov. Whitmer’s goals — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.
How to Submit Your Comments to EGLE by Oct. 19
Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:
EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.
How to Learn More about Line 5 and the Risky Oil Tunnel
To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:
It Is a Time to Restore the Ethos of the Common Good of All
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Like all of you, in this time of the coronavirus pandemic, the common ground we share—the ground we stand on—is shaking, sinking, shifting beneath our feet.
A Sorrow of Loss and Humanity
We experience or share others’ pain, suffering and loss; some close, others far, those thousands we don’t know—nurses, doctors, emergency medical technicians who have risked or even given their lives to help save another. Even with the open spaces of time mixed with work and things at home put off far too long, I can’t shake the sadness that has taken hold of me, a deep sorrow for our common humanity.
A Solace of Hope
Before firing up the laptop this morning, my wife Judy and I watched a great blue heron engulf the top of a tall spruce with its six-foot wingspan. Last evening, we picked a few twigs of pussy willow, tip-toed the riverbank to follow the spring steelhead run up the Platte River in northwest Michigan, and watched a brown trout torment the spawning pair for their eggs. The cycles of seasons, water, plants, animals stirring in the cedar swamp follow their preordained course to seek the common good. Maybe in this dark shadow of COVID-19 we, too, in our shared humanity will return to and follow the common ground that has been shaken.
But I’m also angry.
It took months—absolutely critical months—after the exponential explosion of the coronavirus for the CEO and his confidants on Pennsylvania Avenue to admit the seriousness of the coming crisis. Why are our federal and state governments, and why are we, ourselves so-ill prepared, without foresight and coordination for supplies that are needed to face the COVID-19 crisis? They’ve had fair warning from the SARS, MIRS, and Ebola emergencies. We witnessed the same lax approach when hurricanes Katrina, Harvey, and Maria hit us. This is not just in the United States. Last year, cyclones and heavy rains hit southeast Africa and Bangladesh when those in harm’s way could have been helped by a proactive priority to address climate change and their safety.
It took a year for Michigan and federal officials to respond when the residents of Flint were exposed to lead by a governor-appointed, politically directed emergency manager’s rush to shift the city’s water supply to the polluted Flint River.Since 2014, the City of Detroit has refused to stop water shutoffs of poor residents who have no ability to pay—the number approaching as many as 140,000 in 2020.The same is true in the City of Benton Harbor. There is no recognition of the rights of citizens to water and health.
It took a month for Detroit and Michigan to declare an emergency and halt water shutoffs and order the restoration of water service to the thousands of homes still shut off from water when they need it most—to wash hands and surfaces to avoid or mitigate exposure to the virus. And, it’s still not clear these residents can turn on their taps to wash their hands, drink water, and cook.
So, this has been endemic to government for years—free markets, deregulation, slashed taxes, downsized government, increased subsidies, strip-mined laws and lack of enforcement, and indifference to the rights and needs of citizens and the good of others:
The Trump administration has repealed Clean Air Act carbon limits to fuel coal power plants, waived environmental impact and alternative analysis in energy, pipeline, and infrastructure projects, and gutted the Clean Water Act by dropping the “waters of the U.S.” rule with the loss of small cold-water feeder streams and wetlands—regulations that are more necessary than ever because of flooding caused by climate change and unprecedented rainfall.
The Trump administration has also directed the Environmental Protection Agency (EPA) to stop recognizing solid scientific research and ignore scientists who would undermine the agency’s dismantling of environmental health and pollution laws.
The EPA, Ohio, and even the State of Michigan refuse to lay down the law and force cleanup by agricultural and concentrated farm operations that are flushing wastes and nutrients into rivers and Lake Erie. These pollutants have converted one-third of the lake into a toxic green cesspool that has closed beaches, destroyed lakeshore tourism, killed fish, shut down fishing and Toledo’s public water supply for 400,000 people.
States like Michigan have suspended enforcement of environmental standards that exceed the protection of federal standards. These state standards are adopted to address pollution and destruction of our public waters and to protect paramount public rights in our public water for drinking, health, sanitation, sustenance, fishing, navigation, bathing, and swimming. Strangely, if the federal government weakens and suspends federal laws and standards, will our own ability to protect health, water, and people correspondingly be weakened?
Wait, I’m furious.
Last week, the Trump administration leveraged the COVID-19 crisis to suspend federal enforcement of violations of environmental laws under the guise that industry needed help to keep their employees working. The oil and gas industry would put people back to work if they can pollute without fear of enforcement? This is absurd.The administration claimed the suspension was temporary, but the time frame is indefinite. If industry employees can suddenly be put back to work because of COVID-19, why were they were working before COVID-19 to enforce federal health and environmental laws?
The devil’s in the details, the saying goes. In this case, the devil is the infuriating motivation behind the suspension: the EPA cited the release of the suspension of environmental laws was urgent and that the polluting industries couldn’t meet the deadlines for comments in time for the needed action; at the same time, the EPA refused to let public interest groups extend deadlines, saying comments could be timely met despite the coronavirus! Then a federal district court in Washington, D.C., ruled that the federal permit for the Dakota Access Pipeline (the “Standing Rock” case ) through South Dakota was invalid because the company and federal agencies violated the impact statement requirements of the National Environmental Policy Act—the agencies had ignored serious concerns related to risks and worst-case scenarios from a failure and oil spills. Now the pipeline and others can move forward without having to comply with federal laws and regulations—like those that require them to monitor, investigate, and prevent spills from oil and gas pipeline operations (Line 5, in Michigan, anyone?). So, now it’s up to the states and their water, environmental, and health laws. Oh, but what if those laws in Michigan can’t be more stringent than these weaker federal standards?
Hope for Subduing COVID-19 and Return to the Common Good
Let’s get angry and positive at the same time. It’s not enough to blame and become outraged, or furious. How do we turn this loss and mourning into the days of healing, and then bring about constructive change in the hope there is a light overcoming the darkness?
We’ve known for decades that greenhouse gases have warmed the atmosphere, perhaps better described as hydrosphere, and that this has warmed the earth, whipsawed weather and water, and destabilized our earth’s inextricably related support systems. In turn, this has heaped stress and increased the vulnerability of plants, animals, and the water cycle that supports them. COVID-19 is the next notch in a noose that has a stranglehold on our lives, communities, air, water, habitat, plants and animals—an awareness and hope that we might all put humanity and the common good of health, education, environment, and basic services such as drinking water, first, and collectively do something about it. We can no longer sit by and do nothing, while the global corporate dominance of economics, a culture of weak government, and the “great god” of free markets enslave us and our planet. My hope is that we don’t chalk up COVID-19 as an isolated tragedy waiting to happen.
But we can’t stop there and blame it all on climate change either. Before the recent devastation from droughts, fires, massive storms and precipitation, and flooding, we’ve had years of deregulation and increasing toxic pollution, plastic islands and invisible fibers in our oceans and water, loss of forests, erosion, sedimentation, and deaths caused by a society that has turned its back on the ethos and laws once passed for the common good. While the nation suffers through this time of COVID-19, we must not let leaders and their slash-and-burn politics gut the very laws that protect water, air, health, and environment and expose us to even greater risks of harm on top of what we are all facing.
The time has come to recognize we all live in an interdependent, interconnected world. We are on the same island coursing around the sun, we are a humanity that will survive only if we put the common good of all for generations to come, first, and utilitarian and material endeavors and wants, second.
Former FLOW board chair Skip Pruss delivered the following remarks — inspired by Dr. Martin Luther King Jr’s “I Have a Dream” speech — on January 12 at the Unitarian Universalist Congregation of Grand Traverse.
By Skip Pruss
I have a dream where the urgency of the climate crisis becomes a unifying force, enabling all to recognize our mutual interests and independencies, and awakening the best within us to common purpose.
I have a dream that we realize that we cannot burn our way to a better world; that we, forthwith, enable a historic transformation to carbon free energy sources where energy producing technologies like wind and solar work with nature and not against it; and where infinite nature-based resources displace oil, gas and coal — which are finite and ecologically and climatically toxic.
I have a dream that government will someday soon be wise enough to account fully for the economic and ecological costs of activities that affect the planet when formulating and implementing public policy. And that government will recognize the value of maintaining the functionality, vitality, and resilience of natural systems.
I have a dream that we recognize the fragility and complexity of the biosphere and that we finally have the political will and wisdom to embrace the “precautionary principle” and enact laws informed by science, and policy informed by deeper knowledge and circumspection.
I have a dream that decisions will be made based upon how they will affect our children and future generations and that we recognize the importance of intergenerational equity and fully embrace the adage, “We do not inherit the earth from our ancestors. We borrow it from our children.”
Lastly, I have a dream where we all embrace an ethic of respect for all living things and a conscious appreciation of the gifts that nature provides; that the earth’s biodiversity and abundant resources are appreciated for the multiple benefits and ecological services they provide; and that we will garner the wisdom and the will to cherish the natural world, repair what we have broken, and begin to restore what we have lost.
Watch the full video below (Skip Pruss begins speaking at 27:30):
An angler speaks with a DNR creel clerk. Photo courtesy Michigan DNR
By Tom Baird
Many Michiganders overlook a state agency critical to the environment.
When we talk about water issues in Michigan, we usually think of environmental protection, especially related to pollution and public health.We tend to forget that environmentalism was born out of the conservation movement of the early 20th century. Water issues remain central to the mission of the Department of Natural Resources (DNR) to this day.
Water was an integral aspect of the early conservation efforts of Michigan, often related to fish and game issues, as well as agriculture. The Department of Conservation was created in 1921, and the DNR took its place in 1965. Michigan’s early environmental laws were assigned to the DNR, but under Governor John Engler the Department was split, with environmental functions going to the Department of Environmental Quality (now Environment, Great Lakes and Energy, EGLE), allegedly because the environmental staff at the DNR was too zealous in its enforcement of the law.
The DNR still has an active water program, covering areas of major concern. Under the new administration of Governor Gretchen Whitmer, several of these areas have seen renewed focus. And the DNR has a Senior Water Policy Advisor, Dr. Tammy Newcomb, who oversees many of these efforts.
PFAS pollution is an area generally within the purview of EGLE and the Department of Health and Human Services. The DNR has an important role in assessing contamination of water bodies and the fish and game that use them. Recently “do not eat” advisories have been posted due to PFAS contamination on Clark’s Marsh and the Au Sable River near Oscoda and the Huron River, for example. The DNR is critical in determining how PFAS compounds work through an ecosystem, and its half-life in various species of fish. Michigan appears to be the only place in the world that has tested white-tailed deer for PFAS contamination, resulting in a “do not eat” advisory for venison near Oscoda. Much of this work has been controversial, especially in areas where hunting and fishing are integral to the local economy, but the DNR has pushed hard when public health was at risk.
Water withdrawals remain another controversial area of concern where the DNR is involved. Applicants for high-volume ground water withdrawal authorizations use the Water Withdrawal Assessment Tool (WWAT) to determine whether a withdrawal will have an adverse environmental effect. This is based on a computer model that assesses the effect on nearby streams. Those streams are classified, in part, by their temperature, flow, and the type of fish living in them. Cold-water trout streams, for example, are highly valued, so a relatively small adverse effect (compared to a sluggish warm water stream) might trigger a denial. The DNR is responsible for characterizing each stream’s type, and identifying the fish that live in it. Recent water withdrawals by Nestlé for bottled water and by Encana for fracking in northern Lower Michigan, and for agricultural irrigation in the southwestern part of the state, have caused significant controversies and litigation. The WWAT is under continuing review.
The Water Use Advisory Council is back in operation. Its purposes include the study of groundwater use in Michigan, and review of the scientific basis and implementation of the WWAT. As noted above, the DNR has an integral role to play, and Dr. Newcomb is the DNR’s delegate to the Water Use Advisory Council. Important work on the WWAT will continue in 2020.
Invasive species are a never-ending challenge for the Great Lakes. A major focus is Asian carp. Intensive negotiations are continuing with Illinois and federal authorities to block their migration into Lake Michigan. The goal is to engineer and finance the “Brandon Road Locks Project.”Brandon Road is a system connecting Lake Michigan to the Mississippi River. It could allow carp to invade the Great Lakes. The project involves measures such as an engineered channel and acoustic fish deterrent, air bubbles, electric currents, improved locks with flushing systems, specialized boat ramps, and other measures. Negotiations with Illinois are ongoing, with the DNR keeping up the pressure.
Climate change is a major emerging threat to Michigan’s fish, wildlife, and state forests. Warming temperatures and severe weather events threaten rivers, lakes, and streams, and their fisheries. The DNR Fisheries Division has been studying the issue for several years now. At some point, difficult decisions will need to be made regarding management of these resources in the face of these climate effects. For example, some streams will warm to the point that they will not be viable habitats for trout, causing management objectives to change. This will be controversial due to its effect on anglers and local recreational economies, and the DNR will play a central role in deciding how to manage these resources in the face of these changes.
The Department of Natural Resources remains integral to the study and management of Michigan’s water issues.Monitoring its work is critical to assure healthy and productive habitats and sustainable water uses.
Tom Baird, who serves on FLOW’s board of directors, is past president of the Anglers of the Au Sable and chair of the group’s legal and governmental relations committees. Reach him at email@example.com.
From left to right, panelists Alan Steinman, George Heartwell, Skip Pruss and Dave Dempsey. Photo by Liz Kirkwood
FLOW held a community engagement session at the Grand Rapids Public Library on Thursday, December 5, to make the economic case for government’s role in protecting human health and the environment—both nationally and locally.
The Grand Rapids event featured presentations by Pruss, as well as Alan Steinman, who directs Grand Valley State University’s Annis Water Resources Institute, former Grand Rapids mayor George Heartwell, and FLOW senior policy adviser Dave Dempsey. FLOW executive director Liz Kirkwood opened the engagement session with introductory remarks and closed it with a panel discussion.
Pruss spoke about his early career in government and highlighted the then-prevailing spirit of public service, and public support for and confidence in government’s high aspirations for implementing change. Examples of that change include building the interstate highway system, reaching the moon, launching the war on poverty, and fostering a nationwide public education system which was at one time the envy of the world. Landmark environmental laws passed approximately 50 years ago demonstrated the value of well-conceived governmental interventions. Since its enactment in 1970. economic health benefits related to the Clean Air Act are estimated at $22 trillion.
Paradoxically, despite significant achievements, public confidence in government has declined in recent decades, said Pruss, who argued in his “Resetting Expectations” briefs that government should support the renewable energies of tomorrow rather than the dirty fossil fuels of yesterday.
Without government subsidies, the oil and coal industries are going bankrupt: they no longer make good business sense. Meanwhile, a report by the White House Office of Management and Budget demonstrates that environmental regulations have the best cost-benefit ratio of any federal rules. Those regulations also help to level the playing field, and eliminate free riders who don’t abide by the rules.
Across the political spectrum, economists agree that positive externalities—activities that result in additional benefits for society—should be promoted, and negative externalities, which indicate market failure, should be avoided. Negative externalities impose “spillover” costs on society that are not included in the cost of production.
To emphasize his point, Pruss quoted Sir Nicholas Stern, who said that “Climate change is a result of the greatest market failure that the world has ever seen.”
“It’s not just the release of hazardous substances and soil and groundwater contamination and the impact to health and wildlife, it’s also the irreparable loss of these functions of this landscape,” said Pruss while sharing a searing image of the destruction of the Tar Sands region in Alberta, Canada. “The benefits of this landscape that are now gone for future generations. We can’t afford to do that.”
Government environmental protection and investments pay off at the local level, too, added Dr. Alan Steinman and former Grand Rapids mayor George Heartwell.
Steinman opened his presentation with an image of a West Michigan sunset over Lake Michigan, which he said shows how economic development and environmental protection go hand in hand. Steinman then contrasted images of Muskegon Lake as an industrial hub and now, as a favorite recreation spot.
Steinman worked 10 years ago on a project to stabilize Muskegon Lake’s shoreline—a project whose funding didn’t originally intend to highlight economic impacts, but whose cascading benefits included “when the insects came back, the fish came back, and when the fish came back, the people came back.”
Ecosystem restoration is generally considered a 3-to-1 return on investment, but the Muskegon Lake restoration yielded a 6-to-1 return.
Former Grand Rapids mayor George Heartwell started his presentation on an upbeat note: “Let me start with a modest proposition—mayors will save the world!” he boomed. “The work that’s done by cities, by progressive mayors, by visionary and innovative mayors will turn down the thermostat on global temperatures.”
While these superheroes are saving the world, they must also address extreme rain events, flooded sewers and common issues facing cities like Grand Rapids.
Heartwell narrated a Grand Rapids story that evolved from spilling billions of gallons of combined storm water and sewage overflow into the Grand River to separating storm and sanitary sewers and creating storm water treatment systems in neighborhood green spaces that also serve as amenities.
Heartwell shared a litany of steps that Grand Rapids has taken to improve the urban environment and mitigate against the effects of climate change.
“I know it sounds like a very small step toward saving the human species but green infrastructure in every city will at least save us from storm water and flooding damage and buy us the time we need to do other climate change mitigation.”
“If every city did what Grand Rapids is doing, life on our planet would survive, and the seventh generation would look back at us with gratitude.”
Dave Dempsey stressed the economic value of groundwater to Michigan and the huge costs of failing to protect it from contamination. About 45% of Michigan’s population gets its drinking water from groundwater sources and industry and agriculture also use considerable groundwater for manufacturing and irrigation. Yet a legacy of contamination has cost Michigan taxpayers over $1 billion in cleanup costs, and there are 6,000 more orphan sites—where no private source is available—that may require taxpayer money to clean up.
Dempsey said Michigan needs stronger groundwater protection policies to support Michigan job creation and reduce health risks from chemically contaminated water supplies.
Above photo: Jane Corwin, US Commissioner/Chair of the International Joint Commission, speaks at a public hearing in Traverse City on July 24, 2019. Photo by Rick Kane.
By Liz Kirkwood
Editor’s note: FLOW Executive Director Liz Kirkwood was recently appointed to be a member of the International Joint Commission’s Great Lakes Water Quality Board.
Liz Kirkwood, FLOW Executive Director
My colleague and mentor, Dave Dempsey, knows almost everything there is to know about the Great Lakes. He’s encyclopedic, you could say. He’s authored over 10 books, including a classic one entitled Ruin and Recovery (University of Michigan Press, 2001).
It’s the cycle we here in the Great Lakes are all too familiar with.
The book tells a story of Michigan’s environmental ruin that began to worsen in the early 1900s, followed by the recovery that began in the 1970s as the public clamored for a clean environment.
It is amazing to imagine that over one hundred years ago, as lax water pollution standards led to the fouling of the Great Lakes, the US and Canadian governments had the vision and foresight to craft an international treaty to address boundary water management and disputes. Known as the Boundary Waters Treaty of 1909, this pact established the International Joint Commission (IJC) to serve as the advisor to both governments in preventing, arbitrating, and navigating water conflicts. Of the nine major water basins shared by the US and Canada, the Great Lakes is the largest and has global significance because it contains 20 percent of the planet’s fresh surface water.
In 1972, with increasing international water pollution, the US and Canada entered into the seminal Great Lakes Water Quality Agreement (GLWQA). The Agreement called for binational action by the governments to reduce phosphorus pollution and meet water quality goals. It also set up the Great Lakes Water Quality Board (WQB) to assist the IJC in watchdogging Great Lakes cleanup.
In the 1980s and 1990s, the IJC was considered the moral authority on Great Lakes issues, candidly assessing progress and problems. Thanks in part to the Water Quality Board, the commission made a lasting contribution to Great Lakes cleanup by defining 43 “areas of concern” (AOCs)—bays, harbors, and rivers with severe legacy contamination—that needed sustained commitment to be cleaned up. Over 30 years later, work continues on the AOCs, along with congressional funding of the Great Lakes Restoration Initiative (GLRI).
The work of the Water Quality Board continues, too. The 28-member board provides advice to the IJC for the benefit of the 40 million people who rely on the lakes for drinking water, sustenance, and way of life. The IJC recently appointed me to serve on the Board.
The Board represents the crossroads of the Great Lakes, bringing together diverse viewpoints from tribal leaders like Frank Ettawageshik and water affordability advocates like Monica Lewis-Patrick. It is a pleasure to serve with them and to problem solve how we can bring the Great Lakes community together to respond to old and new problems in the Basin. This work depends on developing key priorities and scientific goals to measure progress, coordinating strong and committed implementation among federal, state, and provincial environmental agencies, building stronger and new partnerships and alliances across these lakes, lifting up silenced voices to ensure water justice for all, and educating and empowering all peoples about the vital importance of protecting the health of our common waters.
It’s been almost 50 years since the two nations entered into the Great Lakes Water Quality Agreement, and during this time, we have watched rust-belt contaminated urban cores rebound and polluted ecosystems revived. But we also have witnessed a rollback of major federal environmental regulations and laws, the Flint lead crisis, Detroit water shutoffs, lack of investment and crumbling regional water infrastructure, lack of safe, affordable drinking water, wetland destruction, water privatization, legacy and emerging pollutants like PFAS, and unprecedented climate change impacts.
Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound. Instead, we must imagine the future we want, where natural and human ecosystems can thrive and prosper together.
To do this, we must challenge traditional assumptions and ways of thinking. We must draw not only on science but also on traditional ecological knowledge (TEK). Traditional ecological knowledge (TEK) is a relational process for indigenous peoples that is built through experience and relationships that are difficult to incorporate into non-indigenous information systems and decision frameworks. We must design and enact bold policies that acknowledge the interconnectedness of human health, economic prosperity, and ecosystems.
With public trust doctrine protection, we can steward our waters as a shared public resource from one generation to the next and ensure multigenerational equity. Healthy economies and communities depend on healthy ecosystems. It’s as simple as that. The future of the Great Lakes depends on a vision and plan based on a water-economy that embraces a new water ethic at its center.
I am honored to serve on the Water Quality Board for the IJC and it is my great hope that we can work together to develop recommendations thattranslate into meaningful bi-national actions designed to protect the long-term health of the Great Lakes.
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.
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.