In a baffling decision announced November 20, the director of Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) dismissed a contested case brought by citizens challenging the state permit issued to Nestlé Waters North America in 2018 for increased water withdrawals from springs north of Evart, in Osceola County’s Osceola Township.
The announcement also, in effect, dismissed the more than 80,000 comments EGLE received opposing the permit (only 75 comments were in favor), the testimony of hundreds of citizens opposing the permit at a public hearing in 2017, and the thousands of hours of effort put into the permit challenge by Michigan Citizens for Water Conservation (MCWC), the Grand Traverse Band of Ottawa and Chippewa Indians, and their allies.
The EGLE decision, which outraged MCWC and the Grand Traverse Band, was perplexing because it came at the end of a permit process conducted by the agency and its predecessor, the Department of Environmental Quality (DEQ). EGLE itself legitimized the two-year public hearing and comment and administrative decision process on the permit, only to say at the end of the process that it was inconsistent with, and not required by, the state’s Safe Drinking Water Act. Instead, said EGLE Director Liesl Clark, MCWC and the Grand Traverse Band should have gone directly to court and pursued legal action.
FLOW supported the citizen parties in the administrative contested case proceeding on the permit, stressing that EGLE had erred in granting Nestlé the permit. The appeal hinged largely on EGLE’s overly expansive interpretation of the law that would lead to significant impacts to Michigan’s cold headwater creeks and wetlands. That statute says an applicant can receive a permit only if it provides real-world impacts analysis of effects, not just a model, for large-volume withdrawals from headwater creeks and wetlands for export as bottled water. Nestlé relied on a model, and EGLE acquiesced. FLOW also submitted formal comments to the State of Michigan finding deep and fundamental deficiencies in a state-approved groundwater monitoring plan fashioned by Nestlé.
Beginning the permit challenge in the courts, rather than through an administratively contested case, would turn the process into even more of a David vs. Goliath conflict. MCWC did just that in a 2003 court case at great cost and sacrifice and ultimately won, reducing Nestlé’s permitted pumping by more than half. Costs to a grassroots environment group for legal action, however, are prohibitive, a reality to which EGLE was unfortunately indifferent. Nonetheless, the opposition continues to discuss the way forward.
Citing inadequate legal authorization, an incomplete application, and lack of a comprehensive state review, FLOW and two Straits-area citizen groups called today in formal comments on the State of Michigan to deny pending permits sought by Enbridge to construct and operate a roughly four mile-long tunnel under the Great Lakes.
The Canadian corporation’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.
The comments by FLOW, the Straits of Mackinac Alliance (SMA), and the Straits Area Concerned Citizens for Peace, Justice, and the Environment (SACCPJE) came at today’s deadline in legal and technical comments directed to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and Michigan Department of Natural Resources (DNR). The groups’ comments identify critical deficiencies in the project’s construction permit application filed in April, its legal authorization, and the review by state environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction.
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project is not authorized by the state, not good for the climate or Gov. Whitmer’s goals, not good for public health, safety, and welfare, and not consistent with public need as the nation and world turn to clean energy for survival,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City.
“We share the public’s deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks it would pose to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life,” said Kirkwood. “The biggest consequence right now of this proposed project is that it distracts the government from its duty to shut down the current Line 5 oil pipelines that pose a clear-and-present danger to the Great Lakes.”
To date, more than 2,600 members of the public—including individuals, families, business owners, community leaders, organizational leaders, and others—have filed comments with EGLE urging the agency to reject Enbridge’s proposed tunnel permits. 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.
The comments Enbridge’s proposed oil pipeline tunnel submitted today by FLOW, SMA, and SACCPJE determined that EGLE:
Cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 easement and tunnel lease have been authorized under the Public Trust Doctrine (PTD) and Great Lakes Submerged Lands Act (GLSLA);
Must undertake an analysis of the lifetime greenhouse gas emissions attributable to the proposed 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.
Availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity; and
Is required to comprehensively and independently consider and determine whether the tunnel project is consistent with protection of Michigan’s natural resources under the Michigan Environmental Protection Act (MEPA). The state must 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 NREPA, “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.”
EGLE expects to issue its final decision on the oil pipeline tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December. While Enbridge takes an estimated 5-10 years to study, seek permits, and build an oil tunnel, the 67-year-old Line 5 oil pipelines in the Straits would continue to decay and endanger the Great Lakes, jobs, and the drinking water supply for half of Michiganders.
“The unique characteristics of the Straits of Mackinac make the area incredibly susceptible to disruption and destruction if EGLE approves the permits for Enbridge’s proposed tunnel,” said Patty Peek, Chair of the Straits of Mackinac Alliance. “The surrounding wetlands, shorebirds, waterfowl, and aquatic species will be in jeopardy from the millions of gallons of wastewater to be discharged daily into the surface waters of the Great Lakes. Local drinking water wells may be polluted and/or drilling operations may imperil the aquifer. Missing information and a lack of specificity on applications cannot be acceptable. The risk to our precious waters is too great to allow this tunnel project to move forward.”
A new climate action plan released by Michigan Gov. Gretchen Whitmer is attracting both praise and calls for faster action from environmental organizations.
Announced September 23, the Governor’s plan calls for a carbon-neutral Michigan economy by the year 2050.That makes Michigan the ninth state to commit to a carbon-neutral economy.
“The science on this issue is clear,” Whitmer said. “Climate change is already affecting our state. Extreme weather has led to some of the wettest years in our state’s history, rising lake levels that erode our shorelines, and immense damage to public, private, and agricultural infrastructure. Rising temperatures and air quality changes worsen health problems and heighten COVID-19 co-morbidities. We cannot afford to wait to take action.”
But the urgency expressed by Whitmer is not fully embraced by her plan, which aims for carbon neutrality three decades from today, advocates say.
Jamesa Johnson-Greer, Michigan Environmental Justice Coalition’s climate justice director, called the timeline “conservative” and noted that Consumers Energy and DTE Energy, the state’s two largest utilities, have already committed to carbon neutrality by 2040 and 2050, respectively.
“We’re at a point in the crisis where we know we have the next 10 years to act to stave off the greatest impacts of the climate crisis … so we need to act now.”
According to her executive order, Whitmer’s plan also calls for:
An interim goal of a 28-percent reduction below 1990 levels in greenhouse gas emissions by 2025.
An Energy Transition Impact Project to assist communities in maintaining critical services and ensuring high quality employment for workers while moving toward a more sustainable future when faced with the closure of energy facilities.
A new Council on Climate Solutions to recommend opportunities for emissions-reduction strategies while focusing on targeted solutions for communities disproportionately being affected by the climate crisis. The Council and the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will work with EGLE’s Office of Environmental Justice Public Advocate to ensure fairness for and representation from underserved communities.
“We applaud Governor Whitmer’s commitment to a carbon-neutral economy by 2050,” said FLOW Executive Director Liz Kirkwood. “By setting this urgently needed goal, Michiganders can tap into their innovative know-how to protect this peninsula we call home. The health of these waters hangs in the balance and depends on our affirmative commitment to addressing the climate crisis head-on.”
Despite limitations, the plan is a big step forward for a state government that failed to take significant action on the climate crisis under the previous governor, said Kate Madigan, director of the Michigan Climate Action Network.
“When we started the climate network five years ago,” Madigan said, “few leaders in our state were even talking about climate change and the rapid and equitable transition off fossil fuels needed to avoid worsening impacts. This silence and inaction were the results of the well-funded campaigns by the fossil fuel industry to create doubt and pressure elected officials to deny the climate crisis. Sadly, those campaigns delayed action for far too long. The action by Governor Whitmer shows that things have changed.”