Photo: Students and faculty at the University of Michigan organized an environmental teach-in attended by 50,000 people in March 1970. It led to the first Earth Day on April 22, 1970.
By Dave Dempsey
Although American environmentalism reaches back to the early 20th century, public demands for clean water, clean air, and healthy ecosystems reached a crescendo in 1970. As 2020 dawns, FLOW believes it’s time to remember and reflect on all that happened that 50 years ago—and how we can make the next 50 years a time of further dramatic progress for our precious waters and the environment.
At the five-day teach-in, in which an estimated 50,000 people participated, Victor Yannacone, a nationally recognized environmental attorney, spoke on use of the courts to halt pollution. He told students, “This land is your land. It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation. It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Gaylord Nelson of Wisconsin and Edward Muskie of Maine.
The national observance of Earth Day followed on April 22.
Earth Day 1970, however, was just one of many events and accomplishments—and a few crises—both nationally and in Michigan. During 2020, FLOW will note these and other milestones from 50 years ago:
December 31, 1970:The Michigan Great Lakes Shorelands Act was signed into law by Governor Milliken.
The first milestone, the National Environmental Policy Act (NEPA), was co-authored by the late Congressman John Dingell of Michigan. As its title suggests, the law established a federal policy on the environment, created a federal Council on Environmental Quality, and required environmental impact statements on proposed major federal activities affecting the environment.
President Richard Nixon, who signed the legislation, said, “I have become convinced that the 1970s absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters and its living environment.”
In 1970, there was a broad bipartisan consensus that the United States and Michigan needed to do a much better job of protecting our environment. It’s a lesson from which we can learn today.
Share Your Environmental Recollections from 1970
FLOW is looking for contributions from you for this 50th anniversary year of Earth Day and related milestones. Here’s how you can help:
Suggest additional local, state, or national milestones from 1970.
Provide short guest commentaries (500 words) with your views on the significance of 1970, what’s happened since then environmentally, and where you hope we stand 50 years from now.
Provide your historical photos of significant environmental events from 1970.
A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.
As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.
Holy Toledo! The Frustration!
So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie?
In a word—frustration!
Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.
In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.
The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.
Well, not exactly no action.
Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.
Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.
What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.
Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.
Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.
Symbolism, Standing, and Redress
While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do.
I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.
Recognizing Rights, and Ourselves, in Nature
Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.
Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action.
When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.
The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.
Michigan, Ohio, and the Public Trust
In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.
Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.
How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.
A Flag to Rally Around
In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.
Jim Olson, President and Founder
It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.
Groundwater contamination in Michigan reaches back over a century.For example, the Antrim Iron Works in Mancelona in 1910 began discharging residues of chemicals recovered from its charcoal production process to an on-site depression that gradually released wastes to groundwater.Although the plant closed in 1944, extensive contamination lingered for generations.By 1960, a plume of groundwater contamination at the site was estimated to be three miles long and a half-mile wide. Placed on the national Superfund list in 1982, the Tar Lake site remains contaminated despite excavation of some soils and pumping of groundwater.In 2013, the Environmental Protection Agency (EPA) determined additional soil excavation and expanded groundwater treatment was required.
Despite lessons learned from widespread contamination of surface water in the mid-20thCentury, policies of Michigan and many other states failed to expand groundwater protections.In a 1963 report, the U.S. Geological Survey noted, “Pollution of rivers and streams, especially in southern Michigan, has placed many communities and other water users in the ironic position of having available adequate quantities of surface water, but of a quality unfit for most uses. Similar pollution of ground water must be avoided.”Instead, as federal and state laws forced cleanup of surface waters, groundwater contamination accelerated.
The staff of the Michigan Water Resources Commission was sufficiently concerned in 1958 to propose a regulation requiring “all toxic and offensive wastes…shall be rendered innocuous by adequate treatment or by sufficient dilution before being permitted to enter the ground.”To support the proposal, the staff provided a list of 16 groundwater pollution sites.Despite this, the Commission tabled the proposed rule.
The emergency evacuation of the Love Canal neighborhood in Niagara Falls, New York in 1978 because of buried chemical wastes brought public attention to the crisis of contaminated groundwater.Congress passed the federal Superfund law, intended to fund cleanup of the worst sites, in 1980, enabling states to inventory and request cleanup assistance.Michigan submitted a list of over 80 sites, the second most of any state.But the full inventory was staggering.The tally included 63 sites that were fouling drinking water supplies, 649 sites of known or suspected groundwater contamination, and an estimated 50,000 sites with contamination potential.The more state authorities looked, the more contamination they found.
The passage of a solid waste management law in 1978 and a hazardous waste management law in 1979 curbed two of the principal threats to groundwater – landfills and spills of hazardous waste materials.In 1980, the department of natural resources finally promulgated the groundwater discharge rules the water resources commission had set aside in 1958. Regulations affecting petroleum storage in underground storage tanks that took effect in the late 1980s closed another loophole in groundwater protection.But it was too late to prevent many unnecessary health risks, an enormous cleanup bill to taxpayers, and a legacy of groundwater abuse that persists in widespread contamination.
Contaminated Sites and Sacrifice Zones
In 1995, Governor John Engler and the Legislature delivered another blow to groundwater. They removed from state law the presumption that polluted groundwater should be cleaned.One result is a long list of “sacrifice zones,” or sites where groundwater use is restricted or prohibited.In many locations, rather than attempting to clean up contaminated groundwater, the parties who own or seek to redevelop contaminated sites are allowed to leave the contaminants in place and instead work with the state to restrict access to it.An analogous policy for surface water would be to bar use of or access to polluted rivers and lakes – something the public would likely not tolerate.
State law sanctions two types of contaminated site exposure controls — restrictive covenants, which run with an individual property and bar certain uses of contaminated property, and institutional controls.Controls typically restrict uses on multiple properties and can affect large zones of groundwater.They include local ordinances or state laws and regulations that limit or prohibit the use of contaminated groundwater, prohibit the raising of livestock, prohibit development in certain locations, or restrict property to certain uses.
As of mid-February 2018, DEQ records showed 3,394 land use restrictions at contaminated sites across the state.Nearly 2,000 additional restrictions were on a list to be plotted and mapped.Of the 3,394 restrictions already recorded, 2,355 were restrictions on groundwater use.Some of the groundwater areas affected are several square miles in size.In effect, for the near future, the state has written off these areas of groundwater.Continuation of this approach will foreclose the use of significant groundwater resources by future generations.
Today, rather than protecting groundwater as a whole – or water throughout the hydrological cycle – Michigan law emphasizes regulation of categories of pollution sources that affect groundwater.This backward approach to resource protection blinds the state to the overall condition of Michigan’s groundwater – and artificially divides groundwater from the rest of the water cycle.The result is a degraded resource.
Federal laws do not fill the breach. The Clean Water Act does not generally apply to groundwater.The Safe Drinking Water Act provides some funding to states to assist communities in assessing threats to community water supplies, including groundwater supplies and to develop wellhead protection plans.But it does not provide a policy or regulate many groundwater contamination sources.
State law does lay down some groundwater protections.Michigan water quality protections in theory extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, streams, and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to and recharges groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
Part 327 recognizes water in the Great Lakes basin and in Michigan is held in public trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.
Because land use directly affects groundwater quality, land uses should be managed to protect groundwater quantity and quality, connected surface waters, and the public trust at least in hydrologically connected public trust streams and lakes.
Dave Dempsey, Senior Advisor
Despite these legal provisions, in practice, Michigan treats groundwater and surface water differently.Drinking water standards apply to water drawn from subsurface sources and cleanup standards apply to contaminated groundwater, but ambient water quality standards do not apply.
As an out-of-sight, out-of-mind resource, groundwater protection depends on our laws reflecting the science of our interconnected surface and groundwaters. Our laws need to catch up to science so we don’t continue to abuse this precious resource.
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!
Last week, the U.S. EPA acknowledged the serious algae problem sickening western Lake Erie. It withdrew its approval of the State of Ohio’s decision not to declare the western Erie basin to be impaired.
Does that mean the lake will be cleaned up soon? Hardly.
EPA’s determination bounces the ball back to Ohio for reconsideration. If the Ohio EPA changes its mind, western Lake Erie will join the impaired list (where reality has already placed it), and a process to identify all relevant phosphorus sources and decide who must reduce by how much will begin. Years may pass before meaningful reductions are achieved.
This is a shame for one of the world’s largest and most biologically productive lakes. Toxic algae cut off the public water supply of the Toledo area for a weekend in 2014, and large green blobs have plagued the western lake for a dozen years. It shouldn’t take years and years merely to launch a cleanup effort.
There is a better way to get action – the public trust doctrine.
In 2014, the International Joint Commission, which monitors the boundary waters shared by the U.S. and Canada, called for a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.
At the urging of FLOW, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” community assets to be collectively protected and shared.
The Commission called the doctrine a vital tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes. By acknowledging the Great Lakes as a commons, the doctrine could give governments fresh authority to protect waters from any source that would cause harm.
Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment. The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.
There are two choices – a seemingly unending process of study and delay using conventional approaches, or strong action by the states, compelled by their citizens, to fulfil their obligations as trustees of Lake Erie. The fate of the lake hangs in the balance.
A great article from the Blade, a Toledo newspaper, was just published which supports the need for a strong “waters of the US” rule under the Clean Water Act. This rule would insure that wetlands and tributary waters of the Great Lakes are not diminished, impaired, and the Great Lakes ecosystem and waters are not damaged. The article reminds us all that we share in the stewardship of the lakes, and that we should all strive to secure a safe and healthy future for our waters. Read more here.
In the spring, the U.S. EPA and Army Corps of Engineers issued a rule to clarify Clean Water Act Protections to wetlands and streams. The rule, also known as the Waters of the United States rule, has not yet been finalized. Since the EPA introduced the rule last spring it has been under attack from many sources, including the Farm Bureau. The rule is needed to clarify the extent of the Clean Water Act, helping to protect small waterways and streams whose protection is currently uncertain.
On Tuesday night June 24, 2014, approximately 150 concerned citizens gathered together at Petoskey High School to learn and ask questions about Enbridge Energy and their future plans for pipeline 5. A wide range of advocacy and regulatory groups were also in attendance and participated in the discussion panel that followed after presentations form PHMSA, Enbridge, and the EPA.
The symposium was structured with a very controlled design. Enbridge along with a number of overlapping agencies and advocacy groups welcomed discussion at tables outside the auditorium before the event started. It was hard to see Enbridge’s table as they were crowded with protesters and students from MI-CATS (Michigan Coalition Against Tar Sands) calling out claims against the energy company. Amongst the 2 bodyguards present with Enbridge, a nervous demeanor was apparent in the shaky voice of their representatives.
Allan Beshore was the first speaker to present. He represented the US Dept of Transportation’s PHMSA (Pipeline and Hazardous Materials Safety Administration) group and provided an explanation of PHMSA’s involvement with the oil and gas industry. The jolly Kansan kept his talk simple and bland with factual information. Allan’s message was that PHMSA is not just a regulating entity but also a group that has a mindset towards providing stewardship to affected communities. Interestingly enough, Allan did note during his presentation that corrosion and equipment failure historically have been the largest occurrence to pipeline breaks.
When Brad Shamla, Enbridge Energy’s Vice President of North American operations took the stage he was met with dissatisfying boo’s from the crowd. Brad focused on the history of Enbridge and made it clear that they have learned a lot from the Kalamazoo spill in 2010. He made sure to underline the fact that Enbridge has invested millions in new green energy technology, safety measures, and attempts to improve the image and culture of their company since the spill in 2010. It was evident that Enbridge wanted to portray their effort to increase public awareness and community outreach also. Thematically the presenters held to a “trust us mentality” assuring citizens they have improved systems since the Kalamazoo oil spill. Yet, nothing seemed too compelling or new in Brad’s talk. While Enbridge has largely grown its employment over the last 4 years, only 250 jobs will be created in Michigan from their proposed pipeline 5 work.
Ralph Dollhopf an on-scene coordinator from the EPA was the last to speak. Ralph discussed the oil and hazardous substance national contingency plan. Reviewing the steps of the process towards executing the plan in the event of a spill. Concerns about tar sands sinking or floating in water were addressed time and again as Ralph based his explanation off the fact that “weathering factors” play a large role in determining sink/float characteristics of oil. This makes it hard to determine any universal cause plan for a spill without knowing the characteristics of the body of water it occurs in.
Initiating the Q & A session 15 people took the stage representing:
Panel questions were predetermined and due to time constraints limited to addressing only a portion of all the questions. Enbridge’s V.P. provided open-ended answers and vague clarifications to most questions as the large majority were directed at him. The rest of the representatives held true to a message of how prepared they are in the event of an oil spill. Bill Hazel, Director of Marine Services from Marine Pollution Control made a point that focus needs to not only be on post-spill contingency plans but also pre-spill. It was clear that there was a lack of preventative tools used to contain spills in the event of a pipeline break in the straights. Today in Mackinaw City there is less than 1 mile of boom ready for deployment in the event of a spill.
FLOW’s submitted question for the panel went relatively unaddressed. “Has Enbridge obtained authorization from DEQ under Part 325, Great Lakes Submerged Lands Act for placement and use of the pipeline”? In response the DEQ avoided directly answering the question stating that the DNR holds the easement and little was known about it, while Enbridge held to the claim that pipeline 5 was grandfathered in under PA 10 back in the 1950s. To be blunt both spokesman seemed unprepared to answer any public trust questions.
In writing the narrative for the symposium a true lack of public transparency took shape in the thesis. If there is a necessity to move oil, pipelines seem to be the most efficient means and an agreement must be found to regulate them. Given Michigan’s immense wealth in the natural resource of water, public trust responsibility is very important. Enbridge Energy came to the event hoping to reassure the public that they are prepared for a potential pipe burst but did not answer anyone’s direct concerns. Enbridge is only looking to seek resolution based on their past history which acknowledges the public’s biggest fear of the energy company, another spill. Citizens left the symposium with more doubt unsure of what the future will hold; it’s the public’s Great Lakes and everyone has the right to know what is occurring in their waters.
A special thanks to Tip of the Mitt Watershed Council for organizing and running this event.