Tag: FLOW

More Than a Christmas Miracle – The Successful Outcome of the Michigan Holy Water Mineral Leasing Issue for Fracking

Published on February 21st, 2014 by - News

By Tom Baird, FLOW Board of Directors member and First Vice President of the Anglers of the Au Sable

This article originally published in the Anglers of the Au Sable quarterly newsletter, THE RIVERWATCH, Winter 2014 Number 68. Click here to read the original article, or view it here. For more about Anglers of the Au Sable, click here to visit their website.

More Than a Christmas Miracle

The Successful Outcome of the Holy Water Mineral Leasing Issue Was
a Product of Shrewd Planning, Coalition Building and a Sense of Urgency

 

It was a tight clock, and there was a long way to pay dirt.

This football analogy best captures the circumstances Anglers faced last October as it became evident that the [Michigan] DNR was going to allow oil and gas companies to bid for leases on land interspersed throughout the heart of the Au Sable [River], its Holy Water. Worse, a third of those parcels were designated “development with restrictions,” which would allow the construction of production facilities and the installation of drilling rigs, storage tanks, compressors, and the other equipment necessary for oil and gas production. At first there was shock, then anger, but there wasn’t much time to dwell on either.

The task was daunting. Still, Anglers of the Au Sable had done the impossible before. Folks who were at the Grayling Ramada in August of 2003 remember the forest of hands that were raised when somebody said, “Who here thinks that oil well is going in on the South Branch no matter what we do?” at a public meeting concerning that crisis. Then there was Kolka Creek — not as dramatic as the Savoy case but maybe more important. The consensus was that Merit Energy would have a free hand in remediating the Hayes 22 facility.

In the end, we won, sometimes with the help of friends, sometimes on our own. Our record is not perfect, nobody’s is, but we know the rules of the game.

In the Holy Waters mineral leases fight, we twice asked DNR Director Creagh to remove the parcels from the October mineral rights auction. After our requests for reconsideration were denied our work was cut out.

First up was the gathering of personnel. We needed experts in communication, issue management, folks with knowledge and connections within the state government, especially the Department of Natural Resources, and, of course, attorneys. Several conference calls were held in short order to get the ball rolling.

We began a behind-the-scenes campaign, including communications from some of our well-placed members, to the DNR, Nature Resources Commission, DEQ, and Governor’s office. There were some weeks when the negotiations had the frenetic feel of a peace accord, but we stayed the course. It is important to remember that those folks involved were also working regular jobs, had family obligations, and were dealing with the same holiday mishmash as everybody else. There were times for some when sleep came at a premium. But we received important signals from key governmental officials that our request was meeting with approval – if we could keep the pressure on.

Next up came building a coalition. Fortunately, the outrageous nature of the DNR’s plan – some likened it to opening the Pictured Rocks or Sleeping Bear Dunes to oil and gas development – aided us in our recruitment. We had partnered with many of the same organizations on sundry causes before. In a very short time Michigan Trout Unlimited (plus two local chapters), the Sierra Club, Michigan League of Conservation Voters, National Wildlife Federation, Michigan Environmental Council, and the Au Sable Big Water Preservation Association were all on board.

It was decided that we needed to go further than the “usual suspects” this time. We were grateful for their support, but everybody involved, including all of them, knew that the extra mile was necessary if we hoped to succeed.

An extensive outreach effort was made to bring in several “non-traditional” partners. It worked better than expected. The City of Grayling, Grayling Township, property owners associations, the Au Sable River Watershed Committee, FLOW, recreation and real estate businesses, and, the Michigan United Conservation Clubs (MUCC) all joined us. MUCC is an extremely important voice regarding conservation questions in Michigan, and having them with us added tremendous weight to our push.

A letter to the DNR Director was carefully crafted. In the end 17 groups, businesses and governmental bodies signed on to it. The letter was sent on December 6, 2013, and copied to any and all in government likely to have a say in the leasing decision.

Many of these organizations took up the reigns on their own, but always staying on message in a carefully coordinated plan of attack. Email blasts to their memberships were forwarded to friends and so on. Almost everybody knew within a day of two of operatives hitting the “send” button what the Holy Water lease issue was all about.

In the meantime, our Public Relations team put together maps, photos, articles and op-eds. We began planting stories with a selected group of reporters throughout the state including the Detroit News, Free Press, the Associated Press, and Michigan Public Radio. The Holy Water lease story was showing up everywhere. It put the oil and gas development issue on the agenda, and the whole thing started to resonate with the public.

And then it went viral. Citizens were now furthering what groups initiated. Perhaps the best example of this was from Robert Thompson, a member of Anglers who is a video producer in Chicago. Thompson was already working on a feature film concerning the Au Sable (watch for its release soon!) and had plenty of footage of the river. He created a 90 second collage of the Holy Water and superimposed the slogans from our “Save The Holy Waters Poster” while adding an affecting soundtrack. Now the cause had a polished, professional commercial (http://vimeo.com/81287261) rolling through the cyberspace.

The tables had turned dramatically in roughly a fortnight. In the public sphere the pressure was mounting with every Internet refresh. People from discrete backgrounds, many of which who were not the typical responders to this sort of thing, were making their views known to the powers-that-be. Thousands of emails and letters were sent to Director Creagh. Behind the scenes in a highly disciplined dance of advocacy our well-placed members were making headway.

And in the end it worked. As outlined in RIVERWATCH 67 (“DNR Director Creagh Joins Anglers in Saying ‘No Surface Development’ on Holy Water”) the Director relented. He allowed the leases, but only as “non-development” in the Holy Waters corridor. This was our objective: preventing development of oil and gas wells near this special piece of water.

Of course, the devil is in the details. We are now working with the DNR on lease language that will prevent changes in the surface use designation during the life of the leases. In addition, Director Creagh assigned his Manager of Mineral Leases to design a way to identify “special places” like the Holy Waters in advance, and, if they are nominated for lease, make it clear they will be non-development. That’s not all there is left to do by a long shot, but we’ve come a long way since last October.

To say that this outcome was one of the most successful efforts in the 27-year history of Anglers would be self-serving, but not necessarily any less true. Given the short window of time and the nature of the government in this right-of-center, “drill, baby, drill” era, it seemed unlikely that we could affect a favorable outcome. But we did more than that. Now there is dialogue. The issue of oil and gas leasing and fracking is far from resolved in our state. The path forward is not clear.

We have a blueprint, though, recently tested and found to be effective. It involves smart and committed people from varied backgrounds hammering out consensus. It involves new partners, who for the first time are seeing the downside of oil and gas development when allowed to proceed in places that are special. We need to keep the pressure on, through a campaign involving diverse voices from the conservation community, environmental groups, business and local government. It cannot succeed without respectful discourse with the decision makers. And, finally, it can only truly be effective when it has the support of the people.

So, you see, it’s really not self-serving to say this may have been one of the Anglers’ Finest Hours. It came about due to a hell of a lot of people putting in a hell of a lot of effort, and doing it in double time.

Thank you all!

FLOW’s Transparent Open Door Fracking Program

Published on February 20th, 2014 by - H2Olson

“For a successful technology, reality must take precedence over public relations, for nature cannot be fooled.” – Richard Feynman

As a non-partisan policy and education center focused on protecting the Great Lakes, FLOW undertakes projects and programs based on the demonstrated reality of problems needing resolution. Unequivocally, FLOW’s mission and sole motivation is to protect our common fresh water resources from permanent harm through education and empowerment of leaders and citizens.

Recently in several online articles, FLOW was misrepresented as an “anti-fracking” “advocacy” group. We were painted as “environmentalists” possessed by an ulterior motive to obstruct the existence of the oil and gas industry, writ large, through “backdoor” practices.

We would like to clarify for the public record that these characterizations are neither true nor reasonable. Rather, our program for local governments to address fracking impacts is an apolitical and pragmatic solution for communities who approach FLOW and voluntarily participate in the program. Our approach is based on factual information regarding the potential risks of fracking and oil and gas development, and what local governments can and cannot do. It is then up to local communities and citizens to identify their local concerns and implement the legal tools and ordinances that address those concerns.

Our method is to work transparently and in direct participation with citizens and officials involved in the issue and solution. This democratic, participatory approach to problem-solving is why we pursue both policy and education as a means of protecting the public interest and maintaining the quality and quantity of our public common waters.

Our program to address local impacts of fracking derives from our thorough and intensive legal analysis report on the topic. FLOW was prompted to investigate the impacts of fracking as it relates to freshwater consumption in the unconventional horizontal (also known as high-volume) fracking process, which in Michigan uses unprecedented volumes of water (more than 21 million gallons per frack well).

The water-intensive horizontal fracking technology we’re seeing proliferate throughout the U.S. is occurring in a vacuum of federal and state regulations, and the industry is exempt from several key water, air, land, and public health protections.

In the spirit of Feynman, we echo the sentiment that, in regards to this particular fracking technology, “reality must take precedence over public relations, for nature cannot be fooled.” FLOW’s intention is to address the reality of fracking impacts as they affect nature and human health in our communities. Despite the fallacious clamoring from some sources that say we are advocates, Luddites, or otherwise in denial of modernity, we at FLOW are – and will remain to be – nonpartisan nonprofit consultants working to protect the public interest of our Great Lakes water.

A Heartfelt Thanks to Our Partners at FLOW

Published on February 17th, 2014 by - News

We have so many partnerships to be grateful for at FLOW, and in honor of Valentine’s Day, we’re taking time to say thanks, and invite others to join us. Just this year, several organizations have reached out to us because of our mission to protect the Great Lakes as a commons and offered their support with community benefit events. From the Yoga for Health Education and Pete Seeger Tribute Community Concert fundraiser events, to the Beans 4 Blue coffee benefit with Great Northern Roasting Company, to the Great Lakes Information Network (GLIN) Site of the Month partnership, we all share a love for our precious common waters.

In January, for example, Yoga For Health Education owners Libby and Michael Robold in Traverse City graciously held a community yoga day to benefit FLOW.  And as a yoga teacher myself, I must say how impressed I was with the amazing teachers and ambiance of Yoga for Health Education at the Commons.

In March and April, Tim Joseph of the Spirit of the Woods Music and Gretchen Eichberger from the Northwest Michigan Folklife Center are organizing three separate Pete Seeger Tribute Community Concerts in Northern Lower Michigan, with proceeds to benefit FLOW. Pete Seeger was a real hero to us all, inspiring us with music to promote social justice and to protect our air, water, and land for current and future generations. The first Pete Seeger Tribute Concert will be held in Northern Manistee County on March 15, the next one will take place at the Mills Community House in Benzonia on March 23, and a final one will be in Traverse City in late April.  Stay tuned for more details about these upcoming events on our website https://forloveofwater.org/event/

Other wonderful news to celebrate is the brand new roll out of Great Northern Roasting Company’s (GRNC) Beans 4 Blue Coffee line with three blends: (1) the original Lake Effect blend, (2) the Wake 5 dark roast, and (3) the Shoreline light roast. All three blends are now on the shelves at grocers throughout Michigan’s lower peninsula and three percent of every bag sold benefits FLOW.  How lucky are we to have connected with GRNC owners Jack and Sarah Davis to celebrate organic fair trade gorgeous coffee and support Great Lakes water policy work, with 3% of sales proceeds donated to FLOW.

And just this month, the Great Lakes Commission-based Great Lakes Information Network (GLIN) named FLOW their Site of the Month for February.  As a GLIN partner, FLOW is honored and delighted to contribute to their outstanding resource network.  GLIN’s website feature comes at an auspicious time as FLOW is celebrating our one-year anniversary of our website today.

GLIN is a critical resource for the multi-jurisdictional agencies, organizations, and resources dedicated to managing and protecting the Great Lakes.  And such a resource is needed more than ever before so that we can effectively partner and collaborate to meet the grave challenges, systemic lake-wide threats like invasive species, algal blooms, dead zones, climate change, water levels, pollution, and many others.  It’s time to empower leaders and citizens across these great lakes with a new vision that protects our commons waters as a legacy for future generations – that’s what we’re about at FLOW. If you have an idea for partnering with FLOW, contact us at https://forloveofwater.org/great-lakes-partners/ and we hope that you join us in protecting these 20% of the world’s freshwater, now and forever.

LivingstonDaily.com: ‘Fracking’ authority debate ignites

Published on February 9th, 2014 by - News

Click here to read the article on LivingstonDaily.com

‘Fracking’ authority debate ignites

By Christopher Behnan

February 9, 2014

FOWLERVILLE, MI – Fighting big oil would be a costly proposition for any local government.

That doesn’t mean local officials don’t have legal ground to challenge drilling operations, including those that use hydraulic fracturing to maximize oil and gas extraction from rock formations, environmental officials said last week.

That’s particularly the case when drilling that uses high-volume “fracking” transports hazardous materials on public roads, disrupts peaceful communities or draws millions of gallons of water from local water supplies, they added.

The ability of local governments to regulate drilling operations has been front and center since Texas-based GeoSouthern Energy Corp. received a state drilling permit allowing injection of 3 million gallons of water, sand and chemicals on private property in Conway Township.

Environmental groups, including Traverse City-based For Love of Water, the state Department of Environmental Quality and the oil and gas industry often have different views on the local-rule issue.

Each is armed with voluminous case law they claim supports its views.

Last week, FLOW gave Conway Township and other local officials an overview of hydraulic fracturing in Michigan and discussed local ordinances it said empower local governments.

FLOW Chairman Jim Olson said local governments have a host of regulatory powers over drilling sites, including under Michigan’s Zoning Enabling Act and state law that favors public health and safety over commercial interests.

State law doesn’t allow local governments to regulate the location of drilling projects or prohibit drilling practices, including hydraulic fracturing, but does allow regulation of noise, air pollution, use of hazardous substances, Olson said.

“You can actually pass ordinances and regulate pretty much any activity that causes interference with the use and enjoyment of property of the community lands and parks and schools,” Olson said.

Because the zoning act only prohibits regulation of drilling wells, local governments also can regulate several “ancillary activities” such as related storage, chemical mixing, pumping activities and truck traffic, Olson added. He said local officials can require site plans from oil and gas companies for their projects.

He said local governments can require drilling permit applicants to submit environmental impact statements to local units under Michigan’s Environmental Protection Act.

Current law doesn’t require oil or gas companies to disclose chemicals used in the fracking process, but officials can require disclosure of chemicals transported on local roads, he added.

“You can say, ‘Well, here’s our roads. You’re going to have to tell us what you’re hauling on these roads and what you’re disposing,” while using the roads, Olson said.

DEQ oversight of operations

Exclusion of drilling oversight in the zoning act leaves jurisdiction over drilling and related operations such as fracking in the hands of the director of the state Department of Environmental Quality, said Adam Wygant, section chief with the DEQ’s Office of Oil, Gas and Minerals.

Wygant on Wednesday will discuss oil and gas operations with Livingston County officials.

Local governments have a say when oil and gas companies want to establish ancillary operations, such as treatment or equipment-storage facilities separate from drilling sites, however, he added.

Local officials can pass bans and moratoriums, but they will not be enforced under current law because the DEQ director, as Michigan’s supervisor of wells, has exclusive oversight of drilling operations, Wygant said.

“We believe our authority is what it is and what has been upheld by case law,” he said.

FLOW’s Olson said it’s possible, but unlikely, for local officials to impose a ban or moratorium on drilling or fracking. That’s in large part because private landowners have the right to lease their lands as they see fit, Olson said.

He said townships would have to prove there is no way to allow hydraulic fracturing anywhere within its boundaries without harming the health and safety of residents.

“You would have to prove that in court, so it’s a pretty tough burden,” Olson said.

FLOW recommended that Conway Township consider drafting several ordinances, including requiring notification of drilling permits to the public and Board of Trustees before drilling begins; requiring companies to pay for water testing for residents within 2 miles of drilling sites before work begins; and requiring a road bond for possible repairs on company truck routes.

The DEQ in October announced proposed rules based on residents’ concerns about hydraulic fracturing, including installation of monitor wells and water sampling in certain conditions; notification to the state if hydraulic fracturing is expected to be used; and disclosure of chemical properties and concentrations used.

Environmental groups were not satisfied with the DEQ’s proposal.

Contact Daily Press & Argus reporter Christopher Behnan at 517-548-7108 or at cbehnan@gannett.com. Follow him @LCLansingGuy on Twitter.

FLOW Selected as Great Lakes Information Network (GLIN) Site of the Month

Published on February 5th, 2014 by - Reports & Media Releases

Click here to view the full press release as a PDF

FOR IMMEDIATE RELEASE
Contact: Allison Voglesong, Communication Designer
allison@flowforwater.org or 213-944-1568

FLOW Selected as GLIN Site of the Month

February 2014 to Feature FLOW

TRAVERSE CITY- The Great Lakes Commission-based Great Lakes Information Network (GLIN) has named FLOW their Site of the Month for February. As a GLIN partner, FLOW is honored to contribute to their outstanding resource network.

GLIN is a partnership that provides one place online for people to find information relating to the binational Great Lakes-St. Lawrence region of North America. GLIN offers a wealth of data and information about the region’s environment, economy, tourism, education and more.

FLOW is a non-profit organization working to ensure the waters of the Great Lakes are protected now and for future generations by recognizing the Great Lakes as a Commons, building deep public awareness and engaging the public and decision-makers about the threats and abuses facing the Great Lakes, and advancing public trust solutions to protect the rights of the people and waters of the Great Lakes Basin.

Because partnership is the core of GLIN, each month they highlight the wealth of information available on the web site of one active GLIN partner. These partners work closely with the GLIN Project Team to ensure that their information is integrated into the regional network; in turn, these partners point back to relevant GLIN pages from wherever appropriate on their own web sites so that people can easily find information about a topic of interest.

More on GLIN at http://great-lakes.net
More on FLOW at http://flowforwater.org

Require Cumulative Environmental Impact Statement for Keystone XL and Alberta Clipper Tar Sands Oil Pipelines

Published on January 31st, 2014 by - H2Olson, News

FLOW, along with a myriad of policy and environment groups throughout the Midwest led by Sierra Club, signed this coalition letter to Department of State Secretary John Kerry. The letter requests that the Department of State consider developing a supplemental environmental impact statement (SEIS) for the Keystone XL pipeline that also accounts for the Alberta Clipper pipeline for the purpose of analyzing the “cumulative climate impacts” of both proposed tar sands oil routes. It got some recent news play via Bloomberg, which identifies that even if the petition letter to Department of State Secretary John Kerry was rejected, it “could be the foundation for a legal challenge.” (You can also read the full text of the Bloomberg article at the bottom of this post.)

In a nutshell: it is insufficient to evaluate the climate impacts of each of these pipelines independently through separate EISs, and we urge the Department of State to develop an SEIS for the Keystone XL pipeline that examines the consequences of both pipelines’ combined climate impacts before reaching a decision on either pipeline proposal.

Why we care: FLOW believes that legally requiring the consideration of both pipelines’ cumulative climate impact presents an opportunity to account for the potential risks and impacts that these pipelines pose to the Great Lakes. As these lakes are protected as a public commons and public trust, it is the duty of the Department of State to ensure that the proposed pipelines will not impair the Great Lakes with the destructive climate impacts they will surely create.

The letter argues that the Department of State’s Keystone XL Draft Supplemental Environmental Impact Statements (DSEIS) downplays the pipeline’s connection to the larger climate impacts of a fast-growing tar sands oil industry. The DSEIS posits that the tar sands industry would seek ways to increase oil development capacity even without the Keystone XL pipeline and will thus have the same, inevitable climate impacts no matter what. However, the Department of State announced that it will also consider a Presidential Permit for the Alberta Clipper tar sands oil pipeline expansion project. This proposal would contribute to a greater increase in tar sands oil development than that which is considered in the Keystone XL SDEIS. Therefore it is critical for the Department of State to consider the climate impacts of the Keystone XL within the context of an even greater increase in greenhouse gas emissions as a consequence of the proposed Alberta Clipper pipeline.

To summarize the points and legal analyses of the letter:

  • The National Environmental Policy Act requires an analysis of the cumulative effects of reasonably foreseeable projects,
  • the Keystone XL DESIS fails to consider the Alberta Clipper expansion,
  • the Department of State must evaluate the cumulative impacts of Alberta Clipper and other proposals in the Keystone XL EIS,
  • new information shows that Keystone XL will directly contribute to tar sands oil expansion and increased global carbon pollution,
  • new information shows that rail cannot replace Keystone XL and other tar sands pipelines,
  • tar sands pipelines are inadequately regulated and unsafe, and TransCanada has demonstrated a dismal safety record, and
  • there are demonstrated contractor conflicts of interest and failure by the Department of State to ensure a thorough and unbiased analysis, which may invalidate findings of the DEIS.

FLOW applauds the Sierra Club for leading the way on this petition, and continues to engage with this coalition and through our own work to protect the Great Lakes and all our common waters from the risks of climate change and extreme energy development.

In addition to supporting this request for a supplemental environmental impact statement, FLOW is specifically interested in requiring that a primary goal of tar sands development be the protection of the Great Lakes. Haphazard tar sands oil development threatens devastating  effects on the water of the Great Lakes as well as its people, businesses, ecosystem, and economy.  The Great Lakes are irreplaceable and undue risks or overwhelming potential harms, such as these proposed tar sands pipeline expansions, are unacceptable and do not comport with the rights of the public under the public trust principles that protect the Great Lakes.

Follow our work on the “nexus” between water, food, energy, and climate change issues here. Read the whole letter here. Read the full Bloomberg article below or at this link.

Keystone Foes Say Two Pipelines Are Worse Than One

By: Mark Drajem, Bloomberg News

January 30, 2014

Opponents of Keystone XL now want to block its construction by showing that two oil pipelines from Canada to the U.S. are worse than one.

The Sierra Club said TransCanada Corp.’s (TRP) Keystone and the proposed expansion of Enbridge Inc.’s (ENB) Alberta Clipper should be reviewed together to account for how the combination would contribute to climate change. The San Francisco-based environmental group filed a petition today with 15 other groups, asking the U.S. State Department to revise its Keystone review.

“If you look at each project in isolation, it doesn’t present the full picture,” Doug Hayes, the Sierra Club lawyer who drafted the petition to Secretary of State John Kerry, said in an interview. “They need to look at the two projects together to see if there will be a climate impact.”

Accepting the petition could lead to further delays in the U.S. review of the Keystone application, which is already in its sixth year. Even if the State Department rejects the Sierra Club’s argument, the petition could be the foundation for a legal challenge, said Ethan Strell, associate director of Center for Climate Change Law at Columbia University in New York.

TransCanada, based in Calgary, said environmentalists will never be happy with the State Department review, which has generated thousands of pages of analysis.

More ‘Ridiculousness’

“This is more of the ridiculousness from the activists who are trying to come up with anyway to” block Keystone, said Shawn Howard, a company spokesman. “At what point does this stop? At some point the process needs to come to a conclusion.”

The Sierra Club said the State Department has to account for its authority over oil sands development, because the two pipelines combined could carry almost 1.3 million barrels a day. By considering each application separately, it’s not taking into account the full impact, according to a copy of a petition to the government provided to Bloomberg.

The State Department reviews permit applications for pipelines that cross international borders. President Barack Obama pledged in June to approve Keystone only if it wouldn’t “significantly exacerbate the problem of carbon pollution.” Enbridge is seeking to expand its Clipper pipeline to carry more oil than is planned for Keystone.

Scientists say carbon-dioxide emissions from burning fossil fuels such as oil and coal contribute to global warming. Environmental activists say Keystone and the Alberta Clipper would lead to greater production of Canada’s oil sands, which are more carbon intensive than traditional crude.

Alberta Crude

A draft State Department report in March reached the opposite conclusion about Keystone. It said other pipelines or more rail transit would be developed to get the oil out to refineries even without the proposed $5.4 billion Keystone project, which would link Alberta crude to refineries along theGulf of Mexico.

Enbridge’s project runs from Alberta to Superior, Wisconsin.

If the rejection of one pipeline would lead to greater use of the other, then the projects should be considered together, Hayes said.

Columbia University’s Strell said the Sierra Club argument has merit and could be the basis for a lawsuit under the National Environmental Policy Act, or NEPA.

‘Cumulative Impacts’

Under the law, “you would have to consider the cumulative impacts,” Strell said. “Certainly, it’s a very common challenge under NEPA.”

Environmental groups separately have been pressing for the final State Department analysis to account for limits on another transport option, rail. If it’s not feasible to move the expanding quantities of oil using rail, the pipeline would become the culprit in worsening climate change, they said in a meeting last month with State Department officials.

New regulations proposed by transportation safety investigators in the U.S. and Canada last week after a spate of oil-train accidents could limit the ability of rail to haul more oil.

TransCanada filed its initial application for Keystone XL, which would carry 830,000 barrels per day, in 2008. Calgary-based Enbridge applied in November 2012 to add pumps and valves to a portion of its Alberta Clipper to increase capacity to 880,000 barrels a day from 450,000 barrels.

“The Alberta Clipper expansion is a very different project from Keystone XL, involving increasing the horsepower on an existing pipeline (Line 67) within a well-established right of way, with no new pipeline construction or ground disturbance,” Larry Springer, an Enbridge spokesman, said in an e-mail.

The State Department is working on the environmental reviews of each application. Once those are complete, the Obama administration must decide if each is in the national interest.

To contact the reporter on this story: Mark Drajem in Washington at mdrajem@bloomberg.net

To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net

Pennsylvania Court Precedent on Fracking and How It Relates to Protecting Michigan’s Commons: PA State Supreme Court rules municipalities can limit what gas drillers can do

Published on January 30th, 2014 by - H2Olson

From the desk of FLOW founder Jim Olson: thoughts on the recent Pennsylvania Supreme Court ruling on how municipalities can limit gas drilling in their community (you can also read the full text of the TribLive.com article at the bottom of this post).

In a show of judicial analysis and sympathy toward the importance of land use stability and values of local communities, the recent Pennsylvania Supreme Court’s ruling upholding local government regulation of the risks of fracking sends a strong message: courts will look with skepticism and scrutinize attempts by state legislators to help special interests overrun local communities’ traditional land use and police powers to pass ordinances that address fracking for oil and gas. The decision is especially important in consideration of mainly vacuous federal regulation and tepid state regulation, where fracking’s substantial effects on land use, water, health, and quality of life are largely ignored.

In sum, the court’s decision refuses to allow a state legislature to take away local governments’ zoning or local power regarding expectations of their community and residents, thus upholding and retaining local governments’ ability to have a say in the location of land uses and the stability of their community, including regulation of industrial uses like fracking through land use districts and special use permits. This precedent is important for other Great Lakes states like Michigan with a long and strong history of enabling local governments with zoning powers because it protects their ability to use zoning powers as a legal and useful tool for protecting land uses, water, air, and health from the impacts and risks of fracking. Click here for more about FLOW’s local government ordinance program to address fracking impacts at the community level.

In December 2013, the Pennsylvania Supreme Court tossed out controversial portions of the state’s oil and gas law changes, letting municipalities retain control over where and when to allow gas drilling (fracking) in their jurisdictions. This is great news for Pennsylvania, and can be good news for local governments in other states as well. However, from state-to-state the laws are somewhat different, so while the ruling reveals a trend that is positive for empowering local governments to address fracking, it is not on “all fours” as we say in terms of useful precedent, and may not necessarily apply verbatim to other states. Thus, it is important that citizens and communities understand the differences of their own state and local government structures and laws so that communities can tailor their ordinances and regulation of various aspects of fracking and ancillary oil and gas uses and activities.

Basically, Pennsylvania’s prohibition on local regulations/ordinances was general in nature as to “oil and gas operations.” Since zoning power was and is delegated by states as a “state delegated specific power” and Pennsylvania zoning law does not exempt regulating the location of oil and gas operations or wells as land uses through districts and permitting schemes, the Pennsylvania court properly found that a general law prohibiting exercise of local governmental police power cannot be used to trump or limit a specific delegation of power like zoning. The Pennsylvania court also chastised the legislature for an overly general and vague prohibition, thus leaving room for local governments to exercise some power, and specifically their delegated zoning power. However, the Court also refused to allow the state legislature, by a broad sweeping law, to remove or take away zoning or the general exercise of local ordinance powers regarding expectations and reliance of communities and their residents on the stability of their land use plan and ordinances. This general reasoning is very important in states like Pennsylvania, Ohio, and Michigan, with strong local government traditions and involvement, including specified powers or preferences toward local governments in state constitutional provisions.

Here are five key points (with a few nuances) about how the Pennsylvania ruling relates to Michigan:

  1. In Michigan, there is no general prohibition on local governments to pass “police power” ordinances to address risks and harms and protect property, health, safety and general welfare. Hence, local governments in Michigan are free to regulate to the point that the ordinance does not outright prohibit a use but addresses the risks of harm or concern for protection of the public health, safety and welfare.
  2. Unlike Pennsylvania, in Michigan the state-delegated zoning statute to counties and townships specifically exempts “oil and gas wells, drilling, completion, production, and closure or abandonment.” However, the exemption is a narrow one. The Michigan Supreme Court has ruled that the “oil and gas well” exemption does not apply to ancillary uses and facilities related to oil and gas wells, such as pipelines, access roads, haul and transfer facilities, storage, sweetening facilities, pumps, and high-volume water wells such as those required for horizontal fracturing. At least as to the location of such wells and related facilities, a special use permit or other zoning regulation to assure compatibility with existing land uses, water uses essential to a land use district such as farming, residential, or park and recreation, could be required.
  3. On the other hand, like Pennsylvania, in Michigan there is no such specific exemption for “oil and gas wells” in the state delegated zoning power to cities. So, unlike townships and counties in Michigan, cities are similar to the Pennsylvania situation. If the legislature attempts to prohibit generally what the zoning power to cities specifically allows, i.e. does not exempt, the Pennsylvania case would be useful precedent
  4. In Michigan there are limitations, although not outright prohibitions, on local government police power ordinances that regulate the location of public utilities or natural gas or other pipelines that are certified by the Michigan Public Service Commission (with the exception of interstate federally certified lines, which are not subject to local ordinances). However, local governments, in these instances, may require by ordinance essential or critical information concerning:
    • use and safety of roads,
    • environmental and hazardous substances disclosures,
    • including chemicals,
    • bonds, indemnities, and insurance,
    • site plans,
    • reporting and inspection reports, and
    • action plans in the case of spills or emergency.
  5. Michigan’s 2008 water withdrawal law, with its corollary Water Withdrawal Assessment Tool (WWAT) contains a provision that prohibits local ordinances from regulating water withdrawals. However, this law does not regulate or address land use or zoning, such as the location, site plan, and facilities themselves. It follows that local communities could, through their state-delegated zoning power, regulate the location of water wells to assure they are harmonious and not incompatible with existing land uses.
    • It would be quite reasonable for a local community to restrict high-volume water wells, pumps, and facilities and pipelines through land use districts or special use permits. Indeed, the Pennsylvania court decision would provide solid precedent for this, because, as described above, a general prohibition on local ordinances would not preempt or limit the scope of specifically state-delegated zoning power.
    • So when it comes to high-volume water wells for oil and gas development, local communities should be able to regulate them through zoning. Why? Because for townships or counties, water wells are “ancillary” to the oil and gas well and therefore not within the “oil and gas well” zoning exemption, and for cities because there is no oil and gas exemption in the city zoning law.
    • Finally, in a somewhat ironic twist, the 2008 water withdrawal law expressly exempts oil and gas development from having to comply with the WWAT or 2008 water withdrawal law. Hence, arguably it would be inconsistent for an oil and gas company to argue that local governments could regulate their water withdrawals when they do not need a permit or fall with the regulatory purview of the water withdrawal law in the first place.
    • But there is another twist to the irony. The Michigan Department of Environmental Quality (DEQ) by internal directive requires oil and gas companies to comply with the WWAT to show no adverse environmental impacts. However, no permit is required under the 2008 water law, and the DEQ directive is more lenient in its application than the WWAT and its application and permitting requirements. Despite these twists, local governments, in any event, have the zoning power to restrict or require special use permits for high-volume water wells based on location and land use issues as opposed to withdrawal issues.

In conclusion, Michigan law already empowers local governments with a broader and more effective ability to address fracking impacts via municipal zoning and police power ordinances. However, this Pennsylvania Supreme Court case is still very relevant for supporting the broader effort throughout the Great Lakes and Midwest region to protect our land, water and common resources, and community well-being from a loosely regulated in terms of land use and impacts of fracking oil and gas development.

-Jim Olson

Read on for the full story from TribLive.com

PA State Supreme Court rules municipalities can limit what gas drillers can do

December 19, 2013

By: Timothy Puko, Pittsburgh Tribune-Review

After nine years of drilling, three years of debate and 14 months of court deliberation, Pennsylvania is back where it started, with shale gas companies and municipal governments at odds over how to manage the Marcellus shale natural gas boom.

The State Supreme Court ended more than a year of uneasy stalemate on Thursday when it struck down oil and gas law reforms that were supposed to limit municipal powers on drilling. The 4-2 decision allows municipal governments to keep blocking off some, though not all, of their neighborhoods from drilling, and subjecting drillers to reviews before permitting drilling.

The long-awaited decision undoes a key element of Gov. Tom Corbett’s signature legislation: It strips the oil and gas law reforms known as Act 13 of the biggest benefit they gave drilling companies. It gives environmentalists and municipal governments a potentially historic precedent to challenge drilling all over the state, reigniting legal battles that were brewing before the case went to state courts last year.

“It’s a great day for all the residents here in Pennsylvania,” said Deron Gabriel, commissioner in South Fayette, one of five Pittsburgh suburbs to lead the legal challenge that started in March 2012. “Fundamentally, we’re vindicated. … We’re able to continue to zone and keep industrial activities where they should be — in industrial areas.”

Both Corbett and members of the Marcellus Shale Coalition industry group called the decision a disappointment. Officials of the coalition and the Pennsylvania Independent Oil and Gas Association said they want to work with municipal groups to find solutions to their conflicts.

“We must not allow (Thursday’s) ruling to send a negative message to job creators and families who depend on the energy industry,” Corbett said. “I will continue to work with members of the House and Senate to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities.”

The passage of Act 13 culminated three years of debate on how to modernize the state’s rules to manage the new rush of shale gas drilling. Horizontal drilling and hydraulic fracturing began in the Marcellus shale about nine years ago, booming to more than 7,400 unconventional wells statewide, according to state records.

Passed in February 2012, Act 13 was supposed to have a three-pronged effect. Two — an update to environmental protections and a fee on deep-shale wells — remain. But the effort to help drillers by making uniform land-use laws in all 2,500 municipalities was part of the challenge and the part the court struck down.

The rules would have required municipalities to allow drilling, wastewater pits and seismic-testing explosives even in residential areas, which Chief Justice Ronald D. Castille called a “remarkable … revolution” on existing law. It would have allowed pads within 300 feet of existing buildings, which Castille said effectively stripped municipalities’ ability to plan for development.

Municipalities previously had the power to decide where and when drilling could happen, and South Fayette, Cecil, Peters, Mt. Pleasant and Robinson in Washington County sued to keep that power. The law put them in conflict with a constitutional mandate to protect residents and property rights by not allowing them to keep drilling away from schools, parks and businesses, they argued.

The Supreme Court heard the case in October 2012 and took 14 months to craft a broad, 162-page decision. Castille wrote it for three members of the majority, and a fourth wrote a concurring opinion. Castille, a Republican Vietnam War veteran and former Philadelphia prosecutor, wrote at length about the state’s history of environmental degradation.

He quoted a passage on deforestation from the timber industry, listed a series of local environmental disasters including the 1948 Donora smog tragedy and noted the billions needed to repair decades of environmental damage from coal mining, which he later said may be rivaled by shale gas extraction. The state has a “notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment,” Castille wrote.

His argument attempts to re-establish the importance of the state Constitution’s Environmental Rights Amendment, the pivotal law cited in his opinion. That amendment empowers municipalities to protect the environment, and the state overstepped its powers by ignoring it, forcing them to accept uniform rules for gas drilling, Castille said.

“A new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally protected aspects of the public environment and of a certain quality of life,” he wrote. “Protection of environmental values … is a quintessential local issue that must be tailored to local conditions.”

The ruling is likely to trigger a flurry of activity from drilling industry lobbyists and lawyers, experts said as they awaited the high court’s decision.

The industry may pressure state lawmakers to try again to streamline rules. One option may be to write a model ordinance for municipalities, then pass a law that allows them to collect impact fees only if they use that ordinance, said Ken Komoroski, an attorney at Downtown-based Morgan, Lewis & Bockius LLP.

“If they can’t do it with a sledgehammer, they’re going to have to do it with a carrot,” attorney Kevin McKeegan, a land-use law expert with Meyer, Unkovic & Scott LLP, Downtown, said last December.

Timothy Puko is a staff writer for Total Trib Media. Reach him at 412-320-7991 or tpuko@tribweb.com.

FLOW Staff to Issue Public Statement at Army Corps of Engineers Public Comment Forums on the Great Lakes Mississippi River Interbasin Study

Published on January 23rd, 2014 by - Reports & Media Releases

Click here to view and download the full press release PDF

For immediate release
Contact: Allison Voglesong, Communication Designer
231 944-1568 or allison@flowforwater.org

FLOW Staff to Issue Public Statement at Army Corps of Engineers Public Comment Forums on the Great Lakes Mississippi River Interbasin Study

TRAVERSE CITY – The United States Army Corps of Engineers (ACE) public comment forums on the Great Lakes Mississippi River Interbasin Study (GLMRIS) report makes the fifth of nine stops in Traverse City, MI on Thursday, January 23, 2014. FLOW, a Traverse-City based nonprofit water policy and education center, has prepared written comments and will make public statements during today’s forum that seeks public input on the new GLMRIS report. The study enumerates eight plans for keeping invasive species, namely Asian Carp, out of the Great Lakes. FLOW encourages the ACE to implement plans that undertake complete hydrologic separation of the Great Lakes Basin and the Mississippi River Basin.

“We need strong Great Lakes policies that protect water quality and quantity, and ensure that invasive species never reach our common waters of the Great Lakes,” says FLOW Communication Designer Allison Voglesong. The present systems for keeping invasive Asian Carp out of the Great Lakes are a series of electrical barriers, but these alone are insufficient, and additional measures are needed urgently.

“To address this complex ecological and multi-jurisdictional problem, there must be a complete hydrologic separation between the Great Lakes Basin and the Mississippi River Basin,” says Voglesong. Cost estimates for ACE plans including complete hydrologic separation vary, upwards of $15 billion in some cases. “From an economic standpoint the Great Lakes support a $7 billion fishery and a $62 billion overall economy,” she says, “There is too much at risk, and the cost of inaction will be far greater than the investments considered here today.”

Voglesong outlines three statements and three questions for the ACE to consider:

  • The 25-year implementation timeframe is too long, and we urge research into a realistic but shorter timeframe;
  • The research in the GLMRIS study is thorough, but the public and our decision-makers need better guidance from the agency for prioritizing possible solutions;
  • We are proponents for plans that establish complete hydrologic separation for all five possible pathways.
  • Is it economically and logistically feasible to scale back portions of these plans that are outside of the scope of managing invasives, such as water treatment, sediment remediation, and flood mitigation?
  • And, are there risks with eliminating these components?
  • Could other plans for complete separation, like those released by GLC and the Cities Initiative, be substituted or reconciled with your complete separation plans to find an economically viable middle-ground?

Voglesong urges the long-term implications of the plan. She says, “Doubtless, there are incomparable, difficult tradeoffs involved in solving this problem. The bottom line, however, is that we must protect the delicate ecological balance of the Great Lakes from destructive invasive species because the waters of the Great Lakes Basin are our shared commons, and our legacy for generations to come.”

Michigan Corps Member Spotlight: FLOW

Published on December 11th, 2013 by - News

Click here to read the article on Michigan Corps’ site

For more about Michigan Corps, click here to visit their site.

By Jason Aoraha

Jim Olson has been practicing environmental law for forty years. In recent years, the Northern Michigander began asking himself how he could bring a group of concerned citizens together to protect water and natural resources under an ancient doctrine known as the public trust, which demands stewardship of our water resources – from navigation to drinking water to recreational needs. He founded FLOW (For Love of Water) to bring Michigan citizens together to protect our state’s most coveted natural resource, and the largest group of freshwater lakes on Earth, the Great Lakes.

FLOW’s mission is to advance Great Lakes policies and solutions that protect our common waters. This year, FLOW entered Michigan Corps’ first Social Entrepreneurship Challenge, and emerged a finalist for their unique policy and education programs that empower individuals with solutions to protect the integrity of Michigan’s waters. Based in Traverse City, FLOW is in a great position (both figuratively and literally) to empower citizens, decision-makers, and legal advocates alike with guidelines on how to protect the Great Lakes.

Founder Jim Olson expresses the passion of a social entrepreneur out to protect and build stewardship of our environment. “FLOW’s work is grounded in reality and a fundamental human value: Water is life. Water runs through every aspect of human endeavor and community. If we protect the integrity of this water, in both quantity and quality, we will sustain life, economy, and community. After all, there is no green without blue,” he says.

FLOW participated as a star contestant in our 2013 Pure Michigan Social Entrepreneurship Challenge with their focus on harnessing the passion of individuals to make a difference surrounding the future of our Great Lakes. We were impressed with FLOW’s focus on scaling their impact through partnerships with organizations that shared their passion, such as the Michigan Environmental Council, Michigan Land Use Institute and others. The team at FLOW understands that to change society for the better, we must build the capacity of our organizations and one another to create groundbreaking policies that address pressing concerns surrounding the future of our waters. Most recently, FLOW pioneered Great Lakes policy and education for citizens and planning officials to suggest improvements to local government ordinances pertaining to the environmental impact of fracking for oil and natural gas extraction.

Following the conclusion of the Social Entrepreneurship Challenge, FLOW joined Michigan Corps’ first cohort of Social Enterprise Fellows. The Fellowship training program helped FLOW evaluate their programming and diversify opportunities for citizens to interact with FLOW’s policy, education, and Great Lakes Society programs.

FLOW and its members are striving to make the Great Lakes a beacon for groundbreaking environmental stewardship. This year, FLOW plans to bring Maude Barlow, a world leader in global water policy and crisis affairs, to Detroit to help catalyze local thought leadership and action surrounding the future of our Great Lakes.

Entrepreneurial thinking is giving FLOW a new perspective on Great Lakes development and advocacy work. If you’re passionate about the Great Lakes, and want to connect with one of the most pioneering organizations involving Michigan’s fresh water – visit flowforwater.org and consider becoming a Great Lakes Society member. It’ll make your next trip to Traverse City that much more meaningful! Also make sure to check out their programs, special public events and up to the minute blog.