In 1962, with the release of her seminal work, Silent Spring, Rachel Carson sounded a warning to the American public about the perils of persistent pesticide chemicals like DDT to silence the very ecosystems they attempt to tame. Carson’s story underscored the interconnectedness of all living things and systems and the need to understand the full life cycle of biocides and other chemicals in order to truly protect human health and the environment.
Despite Carson’s work and subsequent congressional toxic chemical legislation, every year, chemical manufacturers release some 10,000 untested chemicals into the environment in the United States. How can this be?
Several weeks ago, I met a professor of environmental toxicology and spoke with him at length about Michigan’s latest emergency drinking water crisis involving a different chemical of concern: per- and polyflouroalkyl substances (PFAS). PFAS are an emerging contaminant of concern because of their widespread use and persistence in the environment, having been commonly used in firefighting foam, water resistant fabrics, nonstick surfaces, stain guards and other commercial and industrial applications. According to recent reporting, there are an estimated 11,000 sites with PFAS contamination affecting a potential 1.5 million citizens in Michigan.
This professor boiled down the problem right back to Rachel Carson’s work, explaining that DDT was in the chlorine family. Once the public and policymakers raised the alarm bells about this chemical family in the 1960s, the chemists simply moved over to the next element – fluorine – and started developing a host of water repellent compounds for commercial and residential use without understanding the public health and environmental impacts once again.
Michiganders now are demanding answers again from their state government that has failed to warn and protect its citizens. Now that the public is clamoring for action, state and federal agencies are finding PFAS in many places. The public water supply of the City of Parchment was found to be contaminated at unacceptable levels, and customers were warned not to use it temporarily. Private well owners near a Wolverine Worldwide shoe manufacturing facility in Kent County have had to seek alternate water supplies. PFAS have also shown up in some school drinking water supplies and in surface waters near Wurtsmith Air Force base.
As early as 2012, DEQ scientists warned administrators about PFAS and their persistence in the environment, and yet, the department failed to take any action putting people and the environment first.
Sadly, this is not Michigan’s first chemical rodeo show. Yet, our state leaders and agencies continue to follow the same playbook: identify the toxic chemical, tell people not to drink the water, scrape up some funding to clean up some contamination sites, and then finally fund the science to determine what a “safe” level is. The State of Michigan needs to do all these things for PFAS, but we need to do a lot, lot more.
First, the PFAS fiasco is a failure of state government to heed the constitutional mandate to protect public health — the executive and legislative branches both. As in the case of Flint’s lead poisoning, experts warned state officials of a threat, and the officials dismissed it. Moreover, over 20 years ago in 1995, the legislature exposed the public to persistent PFAS threats by weakening liability and increasing the allowable cancer risk.
Liz Kirkwood, Executive Director
Second, the PFAS fiasco is a canary in the policy coal mine. It’s a warning and a reminder that our economy and environment are engulfed in a bath of chemicals, many of whose risks are unknown. The public trust doctrine forbids the impairment of water-related uses, but as long as our chemical policy is founded in ignorance, we are breaching the doctrine hundreds of times over. It’s time to right the wrong and protect the public trust — and health.
Once again, the Michigan Department of Environmental Quality has sacrificed our precious water resources for the profits of a privately owned business and the promise of a couple of low wage jobs. As a result, the waters of the Au Sable River will be seriously polluted, and the risk of harm will be borne by the taxpayers of the state.
On May 1, DEQ Director Heidi Grether issued a final decision upholding a pollution discharge permit for the Grayling Fish Farm on the East Branch of the Au Sable River. In doing so, she has endangered one of the premier fresh water resources in Michigan and violated the state’s duty to hold that resource in the public trust. The Anglers of the Au Sable, which had contested the permit, filed an appeal of Grether’s decision on May 9 in Crawford County Circuit Court.
The Au Sable River is Michigan’s finest blue ribbon trout stream. It is the number one fly fishing destination east of the Mississippi. As such, it is a huge contributor to the region’s tourist economy and to property values in the river valley.
The fish farm, owned by Harrietta Hills of Harrietta, Michigan, is operated in an old fish hatchery built at the beginning of the Twentieth Century and abandoned by the state decades ago. Its last use was as a tourist attraction. It was not designed to be a fish farm, and has no wastewater treatment facility. It is a “flow through” system, meaning that water is diverted from the river, flows through the fish (picking up phosphorus, fish waste and uneaten fish food), and then flows back into the river just upstream from the famed Holy Waters of Au Sable. Essentially, the river is used as a sewer for the fish farm. Portions of the river are fenced off, preventing floating or fishing on that stretch.
The effluent allowed by the permit will cause excessive algae growth, reductions in aquatic invertebrates (the “fish flies” on which the trout depend), reductions in dissolved oxygen, and an increased risk of dreaded Whirling Disease, which is lethal to young trout. The minor modifications of the permit required by Grether will do almost nothing to ameliorate the damages. She did not provide additional limits on discharges; the DEQ will not provide ongoing monitoring; and Harrietta Hills will not be required to post a performance bond.
The pollution will accumulate over time to the serious detriment of the river and the fishery. The fishing will decline. Anglers have choices. Poor fishing means less fishing trips to the area. A resource economist from Michigan State estimates that economic losses to the regional economy due to reduced fishing will be $1.77 to $4.6 million per year. Additional losses will flow from other reductions in recreational uses, and due to reduced property values. In the event of a catastrophe, the taxpayer will likely foot the bill.
The DEQ was created to be “business friendly,” and it has not disappointed: water withdrawals for fracking which dried up the North Branch of the Manistee River, algae blooms in Lake Erie, the Nestles bottled water fiasco, Flint – the list goes on and on.
There will always be those who see ways to make a buck off resources owned by the people. And reasonable use of our resources is fine. But the DEQ has totally abdicated its role as the protector of the public trust in our waters. So it is left to small nonprofit organizations and citizens groups to do what is needed. Consider that at election time, and when you think about which groups to support. It really is up to us.
For almost eight years, Michigan’s Department of Environmental Quality has sided with resource exploitation over resource protection. MDEQ’s recent decisions to grant Nestle a 60% increase in the volume of water it can extract from springs near Evart for bottling and sale, and to authorize Enbridge Energy to bypass full environmental alternatives review and install more support anchors on its dangerous Line 5 pipelines are just the latest examples.
It wasn’t always so — and we can do better again.
Michigan’s conservation and environmental protection agencies have been recognized as national leaders in two eras. From 1921 to 1970, the Department of Conservation oversaw the reforestation and acquisition of 9 million acres of forestland, built a robust park system, and vaulted recreational fishing and hunting to national prominence, particularly in deer and salmon management.
From the late 1960s to the 1980s, the Department of Natural Resources attracted national praise for a number of bold actions. DNR was a major force in making Michigan the first state to cancel most uses of DDT, three years before the federal government. DNR championed reduction of phosphorus, which led to the recovery of Lake Erie. The state adopted tough limits for sulfur content in coal burned by power plants in Michigan, attacking acid rain and smog before nearby states. With DNR support, the Legislature and governor enacted laws to control soil erosion, protect inland lakes and streams, protect sand dunes, protect wetlands, protect Great Lakes shorelands and bottomlands, improve management of solid and hazardous waste, clean up toxic waste sites and ban oil drilling in the Great Lakes.
In both eras, a key feature was the separation of the Department of Conservation/Natural Resources from raw partisan politics. As was true in many Midwestern states, lawmakers in the 1920s created a citizen commission, the 7-member Conservation Commission, appointed by the governor, to oversee the agency. The Commission chose its own chairperson and was generally free to put in place policies that would pay off in a generation without suffering direct political backlash.
The Commission system was born in part out of a memory of how politicians of the mid- to-late 1800s catered to the lumber barons, market (not sport) hunters and other commercial interests who laid waste to natural resources and abandoned the state, leaving behind ruin for the people of Michigan to clean up. A Commission insulated from the pressures of politics and lobbyists, it was felt, would be able to put in place policies with long-term public benefits rather than immediate rewards to politicians. This enabled foresters to take a long view of 40 to 50 years for replanting the north country.
The tradition continued in the 1960s and 1970s, when what was now the Natural Resources Commission generally provided support for staff to do what it considered best. The DNR also contained air and water commissions that met in public, voted on rules and permits, and heard out the concerns of citizens. The DNR Director from 1975 to 1983, Howard Tanner, encouraged staff to “err on the side of the resource” when in doubt.
Michigan has not been regarded as a leader on the environment since Governor John Engler in 1995 split the DNR in two, abolished most citizen commissions and gave the new DEQ a “hands-off” mandate. The DEQ has never had a commission and the DNR’s Natural Resources Commission performs mostly ministerial functions, rarely delving into major policy issues, instead setting fish and game rules and seasons. Leaders of both agencies are appointed not because of excellence in environmental and natural resource fields, but because of fealty to the governor.
How might things be different if a DEQ Director sensitive to public concerns had acted swiftly when advised about alarming news in Flint – or if citizens from Flint had been able to speak in public before a citizen commission demanding that the state investigate?
The current DEQ mission statement does not use the word “protect”:
“The Michigan Department of Environmental Quality promotes wise management of Michigan’s air, land, and water resources to support a sustainable environment, healthy communities, and vibrant economy.”
The name of the agency also lacks the word “protect.” Perhaps it needs a new name — the Michigan Department of Environmental Protection — and a mission to “protect the air, water, land and other natural resources of the state, and the public trust therein, from pollution, impairment and destruction. Through a high level of professionalism, respect for public views, strong science, law enforcement, and policy that considers both current and future generations, the Department assures a healthy people and environment.”
The MDEQ and the Snyder Administration have failed (again) to fulfill their public trust responsibilities as defenders of our waters.
While we are continuing to analyze the state permit and accompanying documentation, and will have a comprehensive response in the near future, some things are clear. The DEQ issued Nestlé a permit to pump up to 400 gallons per minute, or 576,000 gallons per day, on the condition that Nestlé submit a monitoring plan and hydrogeologic measurements on flows and levels and agree to reduce pumping to 250 gallons per minute when the measurements show adverse effects.
The DEQ is going to issue the permit now and wait to make the determination of harm later. This is not a “reasonable basis for a determination” of effects before the permit was issued, which was what the law required.
We’re disappointed that the MDEQ not only ignored the clear opposition of tens of thousands of Michigan citizens who have opposed this giveaway of publicly-owned water, but also ignored serious deficiencies in Nestlé’s application.
Michigan went down the wrong path a decade ago when it approved a law treating private capture of water and sale for profit as just another water withdrawal. It is not. Commercialization of public water is a betrayal of the public trust.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands that by their nature cannot be privately owned. Rather, these commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
Last week, the Ohio EPA designated a thousand square miles of toxic green algae that spreads over the western end of Lake Erie in summer months “impaired.” This sudden reversal came after Ohio EPA filed a report under the Clean Water Act (“CWA”) with the U.S. Environmental Protection Agency.
Epiphany? No, that opportunity ended with Lent. So why did Ohio’s EPA and Ohio Governor John Kasich finally come around? A metanoia that allowed them to drop the years of delay on requiring any action by corporate agriculture, allowing them to address phosphorous reduction from runoff and climate change-influenced weather on their own time.
Why did they change their minds? Because nature doesn’t wait. But that’s only part of it: Lake Erie fishing, boating, swimming, beaches and tourism have been severely damaged since the western third of Lake Erie turned into a green mat of algae in the summer of 2011. If that wasn’t enough, in 2014 toxic algae shut down the public drinking water supply of 400,000 people in Toledo, and another 100,000 up the coast all the way to Monroe, Michigan. Now the shadowy green mat of harmful algae is as much an annual event as the corn crop production in the Ohio, Indiana and Michigan river valleys that causes it.
In 2014, the international Joint Commission (“IJC”) urged a 40 percent reduction of phosphorous levels in Lake Erie within four years; states like Ohio picked this target up but gave it lip service by moving the target back to 2025. Nothing has been done to set a target to prevent impairment or destruction from algal blooms. Professor Don Scavia at University of Michigan has warned that prolonged delay in achieving limits will be offset by increased global warming and extreme weather events caused by climate change.
ELPC Lawsuit for Government’s Violation of the Clean Water Act
So, what else caused Ohio EPA to change its mind? The United States EPA and Ohio EPA were about to get slapped hard by a federal court for failing to designate the waters of western Lake Erie as “impaired waters” in violation of the federal CWA. The Environmental Law and Policy Center (“ELPC”) out of Chicago and a team of lawyers filed a lawsuit in the U.S. District Court on behalf of Toledo and Advocates for a Clean Lake Erie to reverse the federal government and Ohio’s denial of reality, ELPC’s lawyers recently argued the case before Judge Larry Carr in Toledo. In a move to avoid penalties and embarrassment by an adverse ruling in May, U.S. EPA changed its acceptance of Ohio’s “non-impairment” designation and ordered the state EPA to reconsider. Last week, Governor Kasich announced that Ohio’s EPA has designated the open waters of western Lake Erie as “impaired waters.”
What does this mean? While it is obvious to the naked eye that Lake Erie and its paramount fishery, boating, swimming, tourism, and its source for drinking water have been severely impaired for years, under the CWA “impaired” means that the State in consultation with U.S. EPA and others must set targets for the maximum daily load of phosphorous from farm runoff and to a lesser degree sewage discharges. The targets have to achieve and assure unimpaired waters for recreation and safe drinking water purposes.
While ELPC will see to it that Ohio EPA’s and the feds’ feet will be held to the fire, the CWA process for setting the targets and enforcing them by rule could take years– years Lake Erie, cities and towns, tourist businesses, property owners and citizens don’t have. Funding is short, political negotiations with stakeholders takes years, and, frankly, Ohio’s goal of achieving reduced phosphorous levels to prevent reoccurring algal blooms for 2025 is too late. Chesapeake Bay was designated “impaired” decades ago, and the so-called stakeholders are still fighting over a labyrinth of legal complications. Are businesses, communities, the public and citizens supposed to suffer billions of dollars in losses and natural resource damages while Lake Erie remains severely impaired?
It Is Time for a Lawsuit
The public trust doctrine is an ancient principle dating back to the Justinian Codes of Rome and some of the earliest court precedents in our country’s history. It holds that commons like air and water are held by each state as sovereign for the benefit of its citizens. When each state joined the Union, the sovereign title to navigable waters vested absolutely in that state in trust to protect the water and aquatic resources for the enumerated uses of fishing, navigation, boating, swimming, recreation and sustenance–drinking water—for present and future generations. The United States Supreme Court and every state in the nation recognizes the public trust doctrine. The doctrine has standards with teeth sharper than a Northern Pike: (1) no one can alienate or subordinate these public trust waters and uses for private purposes; (2) no one– not private corporations, persons, or any government or political subdivision–can impair or substantially interfere with the quality and quantity of these waters or the enumerated public trust uses; and (3) the public trust imposes an affirmative, high and perpetual duty on government to see that no alienation or impairment occurs!
So, what are we waiting for? What are Governor Kasich and the Ohio EPA waiting for? The state Supreme Courts of Indiana, Michigan and Ohio–where the phosphorous runoff is occurring– have all recognized and adopted the common law public trust doctrine. The public trust doctrine prohibits foot-dragging like the failure to take swift definitive action against corporate farms and cities that are the combined source of this wholesale destruction of Lake Erie. To be sure, there are stakeholders with interests that must be accommodated and balanced, but not at the expense of the damage caused by the continued blatant violation of the public trust doctrine. The public trust standards are the outer limit, these standards are not discretionary, they are mandatory, they can’t be ignored and they can’t be subordinated. In other words, all of the stakeholders are subject to the non-impairment standard, and all involved are legally obligated to comply with the public trust principles first.
How is this done? It’s straightforward at this point. The ELPC lawsuit or a new lawsuit brought by plaintiffs who are citizens, communities, organizations, property and tourist business owners should seek to declare a violation of the public trust and take steps to enforce it by ordering those contributing to the damage to immediately prevent phosphorous from entering the streams and rivers that flow to Lake Erie. Two years ago, Michigan declared its share of western Lake Erie “impaired.” Now Ohio has determined its share is also “impaired.” If it’s impaired under the CWA, it’s also impaired under the common law of the public trust doctrine. Those who are causing or contributing to the impairment must be named defendants, all or some lead defendants, including the large corporate farms and the Ohio EPA and Michigan DEQ – unless of course Michigan wants to join as plaintiff in bringing this claim forward.
Because the waters are impaired in violation of the public trust, the only question is allocating liability and holding hearings to determine the remedy– the limitations and actions required of all defendants and others to reduce phosphorous and stop the harmful algal bloom destruction of Lake Erie.
The lawsuit or lawsuits can be filed in the same way any public interest litigation proceeds. The court oversight after the BP Deep Horizon spill worked to minimize the impairment of the Gulf of Mexico. In a major settlement, tobacco companies were forced to pay damages caused to the public health in each state.
There is nothing new here, and in fact a public trust case like this would be both simple and unifying. First, the factual finding is done – there is impairment. Second, this impairment violates the public trust. Third, it is well documented to a strong degree of certainty who and what causes the harmful algal blooms. Sorting out and allocating fault is not a barrier to a public trust case, it is simply what a court does in the name of equity and justice to fairly apportion responsibility. If a hearing on the allocation and remedies is needed, then hold it and bring in the experts. There are many in Ohio, Michigan and throughout the Great Lakes region, including the fine scientific universities and groups working on the algal blooms and climate change under the auspices of the Great Lakes Water Quality Agreement and the IJC.
This is the time to end the impairment and destruction of harmful algal blooms in Lake Erie (and elsewhere in the Great Lakes). We have three branches of government. The courts are one. When the other branches fail or are unable to take the action that is needed when it is needed, our constitution assigns to the courts the role of taking over the controversy, especially when the harm is severe and an imminent threat to public health, property, safety and the general welfare.
Jim Olson, President and Founder
We don’t need a bureaucracy to get around to doing something on its own time through a drawn-out process like the somewhat uncertain establishment of targets and enforcement under the CWA. Why rely only on the CWA and federal and state bureaucracies when a court can take charge, find a violation, set the target, allocate the responsibility, and order actions that reduce phosphorous and stop the destruction of Lake Erie. Ask the legally protected beneficiaries of the public trust doctrine, our citizens and businesses and communities who continue to suffer devastating harm. The time for judicial action and supervision action under the public trust doctrine is now!
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This 1500-year-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.
New York’s Love Canal was once an instantly recognizable label to most Americans. In 1980, after toxic waste from an old chemical dump began to ooze up in the yards of a housing development built atop the dump, authorities evacuated the neighborhood. Love Canal became a national symbol of chemical mismanagement, and the impetus for the Superfund cleanup program.
Michigan officials looking for toxic waste dumps and spill sites affecting groundwater found them everywhere. That, coupled with public concern about everything from health effects to depressed property values, prompted the Legislature and voters to kick in more than $1 billion in state funds for groundwater cleanup.
And then something happened.
In 1995, state policy changed. Instead of striving to remove all contamination, Michigan went to a risk-based approach – meaning contamination could remain in the ground if means could be put to work to limit the exposure of human beings to these poisons. These means could be everything from a concrete cap atop contaminated soil to a local ordinance prohibiting the drilling of new wells into contaminated groundwater.
That saved businesses legally responsible for the contamination considerable money, but it also fostered the spread of contaminants in groundwater in many locations – often groundwater once used for drinking water.
The Michigan DEQ estimates that contaminated groundwater is coming out of the ground and discharging to lakes, streams or wetlands at approximately 1,000 locations in Michigan. It’s as if 1,000 new (and sloppy) chemical plants were sited in Michigan and were allowed to have lax or no controls on the pollution they are sending into our common waters.
The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment, and that government has a duty to safeguard these uses as a trustee on behalf of the public. By allowing contaminated groundwater to spread and pollute surface water, the State of Michigan has failed to fulfill its public trust obligations. It’s not only a breach of the public trust in water, it’s a potentially grave threat to the health of our citizens.
A Circuit Court ruling reversing Osceola Township’s denial of a zoning permit for a booster station five days before Christmas does not clear the way for Nestlé’s push for a massive increase in pumping from 150 gpm to 400 gpm (210 million gallons a year) from two headwater creeks. Nestlé must still obtain a permit from the Michigan Department of Environmental Quality under two laws that prevent Nestlé from degrading water levels, fish, wildlife, habitat, and wetlands.
In June 2017, the DEQ refused to issue a permit because Nestlé failed to submit sufficient proof that its more-than-doubled removal of water would not harm the waters and the state’s paramount public interest in its natural resources. In November, 2017, a Nestlé consulting firm submitted additional information based on an addendum to its computer model. FLOW, a Great Lakes Policy Center, and other organizations, including Michigan Citizens for Water Conservation and Great Lakes Environmental Law Center, have submitted comments contesting the adequacy of Nestle’s model and supporting information. Their comments have demonstrated the model is not reliable to determine effects to headwater creeks, streams, and wetlands, and that some of the data has demonstrated adverse effects at even 150 gallons per minute.
In a related matter, Circuit Judge Susan Sniegowski released a decision on December 20, 2017 that reversed an Osecola Township zoning denial of a booster station located along a water pipeline more than a mile from the wellhead. The booster pump would increase pressure in the line to handle the large expansion. The Court ruled that Nestlé’s booster station could be located in the township’s agricultural zoning district because it qualified as an “essential public service.”
“The Court ruling is a narrow one,” said Jim Olson, noted water and land use lawyer and advisor to FLOW. “The Court ruled only that Nestlé did not have to show ‘public convenience and necessity’ in order to qualify for the ‘essential public service’ exception for its booster station in the farming district. It does not affect the continued lack of proofs needed for the state permit.”
Nestlé must still overcome the demands from the State, FLOW, MCWC, the Tribes, and thousands of public comments to show that the massive increase will not adversely affect and harm water and natural resources.
Nestlé lost a 9-year battle in Mecosta County when the circuit and appellate courts found that the removal of 400 gpm from a similar headwater stream system was unlawful. “Based on the experience in Mecosta, it is unreasonable for Nestlé to expect, let alone for the State to approve, an increase above 150 gpm, if at all,” Olson said. “So the booster station is largely superfluous.”
President and Legal Advisor, FLOW (For Love of Water)
July 25, 2017
Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:
This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.” As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.
FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period. For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.
First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.
Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.
In lay person terms, what does this mean? It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.
New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that. Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.
What to do, then? The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).
The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil. The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.
To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines. The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.
LANSING – Oil & Water Don’t Mix today said the Michigan Department of Environmental Quality’s decision to cancel a study that was rife with conflicts of interest amplifies the need to shut down the Line 5 pipelines once and for all – and called on state leaders to disclose all details of the draft study that was plagued by conflicts of interest.
“Citizens groups have been sounding the alarm bells for months about the massive conflicts of interest between Big Oil companies and the departments that are charged with regulating them, and this cancellation raises more questions than it answers,” said David Holtz, Chair of Sierra Club Michigan Chapter and Oil & Water Don’t Mix campaign coordinator. “The State of Michigan owes all citizens a full account of how and why this study was allowed to continue, even in light of the massive conflicts of interest. Michiganders deserve answers.”
“This study was tainted by huge conflicts of interest and a complete lack of transparency from the state, all with Line 5 continuing to pose a clear danger to our Great Lakes, our economy, and our way of life,” said Liz Kirkwood, executive director of For Love of Water. “In addition to a full and complete disclosure of the facts regarding this cancellation, we demand that Attorney General Schuette start acting like the lead attorney for the people of Michigan, who elected him to protect us and the Great Lakes, and shut down Line 5 without delay.”
Urgent Threat: Enbridge is courting an oil spill disaster again in Michigan, and this time the Great Lakes are at risk. The public has until June 29, 2017, to oppose the Canadian energy transport giant’s request for state permission to squeeze more life out of a cracked, dented, and deformed pair of pipelines that push 23 million gallons of oil a day across the bottom of the Mackinac Straits, where Lake Michigan and Lake Huron meet. The request to continue the piecemeal patch up of the 64-year-old “Line 5” pipelines threatens the drinking water source for more than 40 million people, the economic engine for the Great Lakes region, and a way of life for millions of North Americans.
Terrible Track Record: Recall that Enbridge in 2010 caused the largest inland oil spill in U.S. history when its southern Michigan pipeline ruptured and dumped more than one million gallons of heavy tar sands oil into the Kalamazoo River watershed. That failure sickened 150 people, and permanently drove 150 families from their homes, taking four years and over $1.2 billion to clean up to the extent possible. Enbridge’s Line 5 has a similar dark history, with at least 29 spills totaling more than one million gallons of oil spread along its path in Michigan and Wisconsin since 1953.
Damage Done: Now Enbridge has applied to the State of Michigan for a permit to install more underwater anchor supports on its antiquated Line 5 pipelines in the Mackinac Straits, which the University of Michigan calls the “worst possible place” for a Great Lakes oil spill. The 22 anchor supports are another belated attempt to keep Line 5 from shifting, bending, and grinding on the bottom in the powerful underwater currents at the Straits, but the damage is already done. These supports are merely the latest in a series of stopgap measures that ignore decades of metal fatigue and stress on the pipeline, which is now well past its 50-year life expectancy and should be permanently shut down as soon as possible.
Follow the Facts
Public records reveal that…
From the 1970s through the 1990s, Enbridge installed grout bags to prop up Line 5, attempting to meet the state’s requirement under the 1953 easement to support the steel pipeline at least every 75 feet along the publicly owned bottom of the Great Lakes.
In 2001, Enbridge declared an emergency on Line 5 in the Straits to stabilize stretches or spans of the pipeline that had become dangerously unsupported for over 130 feet because of “washouts” of the lake bottom and grout bags caused by swift currents that, records show, were underestimated when the pipeline was designed.
Recently it was revealed that Enbridge was out of compliance likely for decades with the legally required safety margin, allowing 16 spans of Line 5 to go unsupported for lengths greater than 140 feet, with the longest being 224 feet on the east pipeline and 286 feet on the west pipeline – nearly four times the legal limit.
With no reliable model to predict lakebed washouts due to the highly dynamic nature of currents in the Mackinac Straits, Enbridge cannot meet its legal duty under the state easement to prudently operate this pipeline.
Enbridge incorrectly categorizes its proposed patchwork response to Line 5’s major structural defects as “routine maintenance” when the company has, in fact, been systematically expanding the capacity of Line 5 and Line 6b in southern Michigan to carry Canadian oil heading mostly back to Canadian refineries and to overseas markets.
This strategy has previously enabled the company to avoid State of Michigan review of the safety and necessity of the pipeline itself, and dodge the legally required consideration of alternative routes and methods that do not threaten the Great Lakes.
Take Action Now
The public has until June 29, 2017, to submit comments to the Michigan Department of Environmental Quality opposing Enbridge’s bid to keep Line 5 on life support and seeking to prevent a Great Lakes oil spill disaster.