Tag: For Love of Water

Have We Learned Our Lessons from PBB?

Published on March 19th, 2018 by FLOW Editor - Blog Posts

Michigan cattle contaminated by toxic PBB in 1973 were slaughtered and buried in landfills.

A story in the Detroit Free Press last week revived memories of one of the nation’s worst chemical disasters. It happened in Michigan 45 years ago. And researchers are still trying to figure out what the legacy is for human health.

Sometime in May or June of 1973, the Michigan Chemical Company accidentally shipped a fire retardant with the brand name of Firemaster to Farm Bureau Services, a supplier for thousands of Michigan farmers, in place of Nutrimaster, a cattle feed containing magnesium oxide. Firemaster was a brand name for PBB, used to reduce the flammability of plastics and electrical circuits. Customers incorporated Firemaster in, among other things, auto dashboards and casings for telephones and hair dryers.

The mistake apparently happened at a time when Michigan Chemical ran out of preprinted bags and hand-lettered the trade names of the two products in black. The similarity of product names or even smudging of the letters was all it took to make the first link in a disastrous chain of events.

Farm Bureau Services sold the mislabeled feed to, among many others, dairy farmer Fred Halbert of Battle Creek. Halbert purchased 65 tons and after one week of feeding it to his cows in the fall of 1973, noticed the animals were sick. They lost appetite, lost weight and produced 25 per cent less milk. When Halbert stopped feeding the Firemaster pellets to the cows, they showed signs of recovery.

In October 1973, the state Department of Agriculture’s head diagnostician inspected the herd and at first suspected lead poisoning. When tests for lead proved negative, the department sought help from Michigan State University and laboratories in Wisconsin, Iowa and New York to isolate the contaminant in the feed. Not until May 1974 did the department determine, with help from Halbert’s son Rick, a chemical engineer, that PBB was the poison. The department then tested feed and farm products across the state. In the first six weeks after the identification of PBB, the state seized 621 tons of feed, quarantined 388,000 chickens, destroyed 13,000 tons of butter and cheese, and imposed a quarantine on 34 dairy herds with 4100 contaminated animals. By 1975 the state had quarantined more than 500 farms and condemned for slaughter over 17,000 cattle, 3,415 hogs, 1.5 million chickens, and 4.8 million eggs.

Before the controversy died away, PBB spawned intensive coverage by the national news media, a made-for-TV movie, a special episode of a popular network drama, and bitter charges of government and industrial coverup and incompetence from the affected farmers and families.

Manufactured for only five years, PBB was so new and poorly-understood that the U.S. Food and Drug Administration did not even set a safety standard for the chemical in food until after it was determined to be the source of Michigan’s previously mysterious farm scourge.

Dennis Swanson, an employee of the Department of Natural Resources, inspected the facility that produced PBB not long after its mistake was exposed. A plant executive told him the company had been monitoring its inventory carefully. But upon entering the building, Swanson spotted what looked like gravel covering the floor, a material that had literally fallen through the cracks from the second floor of the building. “I scooped it up,” he said, and took it back for laboratory analysis. It turned out to be pure PBB. Swanson also took three samples of water from the Pine River, which flowed past the plant, and captured some catfish. When analyzed, they all tested positive for PBB.

The Company’s negligence was causing two environmental disasters simultaneously. Locally, PBB – and, it was later discovered, DDT – smothered the bed of the Pine River for miles downstream, and the plant site itself was seriously contaminated.

The attention of state officials, the national news media and Michigan citizens was concentrated on the fact that PBB had entered the state’s food chain, entering the body of anyone who drank milk or ate chicken or beef from the affected farms. Millions of citizens took PBB into their systems.

But what were the health effects of PBB?

Scientists knew almost nothing about this angle, since the chemical had entered commerce so recently. It was clear that some dairy herds were severely affected.
As a precaution, the state ordered the slaughter of the most highly-contaminated cattle, hogs and chickens. Burial of the PBB-tainted animals touched off another controversy. The burial finally went ahead, but only in the teeth of local resistance.

In an age when other issues were commanding public attention and chemical manufacturers had spent considerable sums trying to remake the image of their products, falsely reassuring messages about PBB’s impact on human health were passed along in the 1980s and 1990s by the same news outlets that had trumpeted PBB as a catastrophe in the 1970s.

Largely through federal funding from the Centers for Disease Control and Prevention, the state for more than two decades maintained a study group of over 3,500 persons from the most highly exposed farm families in the state. Researchers reported in 1995 that women from the group with higher levels of PBB in their blood had an increased risk of developing breast cancer. A second study published in 1998 revealed higher risks of digestive cancer and lymphoma among members of the group with higher PBB blood levels. A third study suggested that girls born to women who had the highest levels of the chemical in their blood reached menarche six months earlier than those whose mothers had been less exposed. This raises the question of whether PBB’s effects may include damage to reproductive health in the second or later generations of the most exposed families.

Tragically, some of the chemicals that replaced PBB in commerce also proved to be a threat to the environment and human health and have been banned or are being phased out. Known as PBDEs, these chemicals have been shown to persist in human blood and tissue and may pose a variety of serious health impacts.

Our regulatory system has repeatedly allowed into commerce chemicals that threaten our health. Last week’s PBB story is a reminder of how such misguided policies can have lasting, multigenerational impacts that could be avoided through precaution.

Racing to the Top: A Reason for Hope by Liz Kirkwood

Published on March 14th, 2018 by FLOW Editor - Blog Posts

There’s no question that this is a tough time to be an environmental lawyer. Just Google “roll back of environmental regulations” and you’ll get hits like “67 Environmental Rules on the Way Out Under Trump” or “A Running List of How Trump is Changing the Environment.” And that’s just a tiny snapshot of what’s happening at the federal level. Here in Michigan, in the heart of the Great Lakes, we also are witnessing a wholesale attack on groundwater laws for big ag, rulemaking authority for environmental agencies, and even the Great Lakes Compact.

But I’m also a historian of sorts where I voraciously hunt for glimmers of hope. I look for those stories that demonstrate human innovation, collaboration, and desire to take risks, do good for the planet, and imagine the impossible.

Lo and behold, I found one of these gems the other day. It was a news story about five water utilities in the Great Lakes competing with one another to reduce their energy consumption and air emissions. These select water utilities are using technology to track and then shift to lower polluting power sources that reduce lead, mercury, carbon-dioxide, sulfur dioxide, and nitrous oxide emissions from the atmosphere. Using new technology called Locational Emissions Estimation Methodology (LEEM) designed at Wayne State University, these water utilities opt to pump water when the lower polluting electric power sources are online. As a result, a Wisconsin utility has reduced its mercury emissions by 25 percent by pumping water at off-peak hours and alternative times in a day.

Liz Kirkwood, Executive Director

Imagine if we saw this kind of competition across all sectors in health, energy, agriculture, industry, food, and water. Imagine that we all saw ourselves in a race to the top, bringing everyone up together. Let’s keep thinking big, and in the meantime, let’s give three cheers to these communities that are leading the way: Bayfield; Detroit; Ann Arbor; North Syracuse, New York; Highland Park, Illinois.

Court Charts Path Forward for Generational Commitment to Save Humanity and Earth from Rising Devastating Effects of Climate Change

Published on March 13th, 2018 by FLOW Editor - H2Olson, Public Trust Tuesday

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.

Between 2010 and 2016, several groups of young people filed lawsuits in different regions of the United States, claiming the states and federal government had failed to fulfill their higher duties under their authorized powers to do something about CO2 and greenhouse gases (GHGs) that have fired warming of the planet, extreme weather events—climate change—causing devastating harm to their lives, homes, families, waters, fishing, and communities.

Federal and state governments stonewalled their efforts, claiming that they could not be compelled to take action because the children did not have a liberty or property interest protected by the Constitution, and that they had no right or interest – standing— to bring a lawsuit.[1] At first, the government succeeded, and then one or two courts recognized that these children’s lives and interests were threatened, and that climate change was a clear danger if not the cause of serious injuries and damage, and opened the door for litigation. But none of these efforts resulted in a clear recognition that these children, or other people threatened or harmed by climate change induced extreme weather, had a constitutional interest in “liberty” or “property,” or an interest as beneficiaries of a public trust imposed on government to protect vital interests—like drinking water, property and home, and fishing, boating, or farming.

A Watershed Moment

Nothing much happened, that is, until Kelsey Cascadia Rose Juliana and other children, through their legal guardian, climate scientist James Hansen, filed suit in the federal court in Portland, Oregon in early 2015.[2] The child plaintiffs charged that the federal government had violated their constitutional and public trust rights – a generational right to non-impairment of their beneficial rights in water and use of water for essential needs based on the public trust doctrine.[3] The children charged that the government and EPA had failed to take sufficient action to stem the harm and dangers of climate change, that the window for action to prevent increasing catastrophe was short, and requested an order from the court to compel the government to develop and implement a comprehensive plan to reduce CO2 and effects of climate change.

Once more, the federal government, joined by intervening industry organizations, moved the court to toss the suit because there was no legal precedent for these claims, and even if they existed, the children lacked standing or any real interest to protect, and that the students were interfering with the exercise of political discretion left to the government. In sum, the government argued the claims even if real were not the students’ business or the stuff that courts should decide.

But this time, the federal government lost. The magistrate ruled that the children had stated facts, endangerment, and harms sufficient for the early phases of the suit to proceed.[4] But government and industry, now threatened by the suit, filed motions before the federal district judge assigned to the trial of the case. In an enlightened opinion in late 2016, Judge Aikens rejected government and industry contentions, adopted the magistrate’s earlier decision, and ruled that the children plaintiffs had the right to bring the suit. He also ruled that the children had properly stated the critical dangers of climate change, the deliberate indifference on the part of the government, and properly claimed a violation of “liberty” under the constitution and the government’s high duty under the public trust doctrine to protect the children’s present and future from threats of rising oceans and impairment of the nation’s waters.[5]

Judge Aikens considered the threat to the children was real, had already caused serious damage, and posed imminent danger to them and humanity in the near future. Exercising what he considered the traditional role of the courts, because the judiciary can’t ignore a “wholesale failure” that unchecked would result in a “collapse” of humanity. Judge Aikens ordered the parties to prepare for a trial that would determine the basis of climate science, the children’s claims, and apply the law and Constitution.

Hurricanes Harvey and Maria

More recently, Hurricane Maria in Puerto Rico and Hurricane Harvey, and the raging fires in California, have jolted us into the realization that global warming and extreme and increasingly chronic effects have caused and are causing devastating and chronic harms and interference with communities, property, and water. To list a few, rising sea levels wreaking havoc in coastal cities, flooding, drought and heat and fires, endangered public health, shut off of public services and water systems, landslides and other damage to property and lives.

Closer to home, in the Great Lakes region, including Michigan, we’ve seen climate change effects exacerbate and foster algal blooms that have shut down Toledo’s drinking water for 400,000 people, and more in Monroe, Michigan. We’ve seen extreme rainfall events overwhelming stormwater controls and drains, resulting in sewage overflows and serious flooding.

In the last century, some courts still held fast to the idea that the air was the atmosphere, lakes and streams were surface waters, and the water beneath our feet—groundwater—was simply “out of sight, out of mind.” In the last 30 years, hydrogeological and weather scientists have made one thing clear: We live in a water cycle, the hydrosphere, where every arc of the water cycle is connected to the others. The arc of precipitation falls to the earth; the arc of runoff flows over the land surface to drains, gullies, and into creeks, streams, rivers, and lakes. The water percolates into the earth and forms aquifers—water sources—and groundwater, another arc, which then discharges through seeps, springs to form creeks, streams, rivers, and lakes. Then, these surface waters flow to the ocean. From the arc of evaporation—from the surfaces of vegetation and water bodies, transfers water into the atmosphere. In the atmosphere, water is diverted into the arc of the air or our hydrosphere, in the form of concentrated “rivers” and “lakes” of moisture and water.

Climate change is not just an air pollution question, it is also a water question– hydrosphere—climate change directly affects the hydrology and movement of water in every arc of the water cycle, and interferes with and impairs water, land, homes, community, and people everywhere. The effect of climate change on water and earth and life dispel any doubt that we and everything else are inextricably connected by the flow and movement of every arc of the water cycle.

Yet despite efforts to do something about climate and water and to become more resilient to live as best we can with the coming changes and impacts from climate change, the federal government continued to drag its feet. The federal government was forced and prodded by the federal courts to treat CO2 as a “pollutant” under the Clean Air Act, but our current President has thumbed his nose at climate change rules and denounced the Paris Climate agreement. It is not unreasonable to conclude there has been a deliberate indifference on the part of governments and industries to reduce the rising dangers and imminent threat to millions of people, water and the hydrosphere.

Constitutional Rights and the Public Trust in Water

In 2011, For Love of Water (FLOW) and the Council of Canadians (Canadians) filed a formal report and request with the International Joint Commission (IJC) to recognize the legal interest of citizens and the duties of both countries and state governments to protect water quality, flows, levels, and its protected uses that citizens rely on for their lives, sustenance, and livelihood based on the public trust doctrine. The public trust is a well-established ancient principle that protects navigable waters and the rights of fishing, navigation, drinking water, swimming, bathing, and sustenance. Because current laws and the governments’ ability to address increasing systemic threats to the Great Lakes and all tributary waters–like algal blooms, Asian Carp, rises and drops in water levels from extreme weather, toxic chemicals, and algal blooms from nutrients and climate– FLOW and the Canadians asked the IJC to recognize the public trust doctrine, and urge governments to fulfill their duties as trustees of these waters and public trust natural resources. After supplemental reports and considerations, the IJC issued a report in 2016 that recommended the public trust as a “backstop” to fill the gaps and limitations of existing laws and efforts.

At about the same time, Michael Blumm at Northwest Law School in Portland and Mary Christina Woods at University of Oregon pioneered claims that the public trust doctrine should be applied to the atmosphere in order to force governments to drastically reduce CO2 and GHGs.[6]

Even without extending the public trust doctrine to protect the atmosphere, FLOW argued that because the arcs of the water cycle formed a single hydrological system—hydrosphere– the traditional application of the public trust doctrine to navigable waters could be used as a basis to reduce CO2 and GHGs, because the effects on the hydrosphere had a direct effect on streams, lakes, and the oceans, and impaired if not destroyed fishing, drinking water, and other life-sustaining public trust uses.[7] Judge Aikens followed similar reasoning in accepting the children’s public trust claim in the Juliana suit.[8]

Trump Administration Climate Change-Deniers Try to Torpedo the Children’s Trust Lawsuit

In a last-ditch effort to avoid a trial over the children’s climate change suit, newly appointed federal officials and their lawyers looked for a way to deep-six the Juliana lawsuit before federal district court Judge Aikens. Justice Department lawyers filed an unorthodox request with a federal court of appeals to take over control of Judge Aikens’ handling of the lawsuit, and peremptorily dismiss the case. But the Seattle federal appeals court slapped down the federal government’s bid, ruling that their attempted appeal was a “drastic remedy” on the claims brought by the children because the issues would “be better addressed through the ordinary course of litigation.”[9]

Commentators everywhere exclaimed that the appeals court ruling affirmed the federal district court that the children could proceed and signaled a landmark ruling on the science and causation of greenhouse gases and climate change. In a classic traditional role, the courts– our third branch of government—have stepped in to interpret what the law is to remedy the unjust deliberate indifference of government and climate deniers. Since Juliana and twenty-one other children filed their suit in 2015, the cities of New York and San Francisco filed suits against Chevron, ExxonMobil, ConocoPhillips and Royal Dutch Shell to pay for the damage and infrastructure needed to combat climate caused by the sale and burning of fossil fuels. Like in the lawsuits against the tobacco industry, the fossil fuel industry has known fossil fuels have heated the climate beyond acceptable levels and endangered cities, water, and the planet. And like the tobacco industry, they’ve done what they can to foster denial and obstruction to the required shift to renewable energy and rapid reduction of CO2 and greenhouse gases.

Jim Olson, President and Founder

In a way, climate change denial by government and industry is reminiscent of the Scope’s trial, fictionalized by Spencer Tracy as Darrow and Frederick March as Bryant in the 1960s movie Inherit the Wind. But the passion of Bryant was based on a genuine belief in the deeper role the Genesis story in defining the human’s place in a world created by God. The coming climate change trials are not so much a denial of science or genuine passion of belief, but a corporate defense of a fossil-fuel grip on the economy, to protect a financial empire that is causing damage and a growing danger of the collapse of humanity with a shorter and shorter period to do anything about it.

Postscript:

Congratulations to lead attorney in Juliana v U.S., Julia Olson (no relation), and Professors Michael Blum (Northwest School of Law, Lewis and Clark, Portland) and Christina Woods (University of Oregon, Eugene), and so many others. Is there any question that the effects of intense storms on the people of Puerto Rico and Houston or the raging fires in California are attributable to climate change? The Children, their lawyers, scientists, and so many organizations and people are bringing justice to those injured by breach of government affirmative duties to protect water, atmosphere, life, and the public trust. We are grateful. The public trust in water and our hydrosphere are the heart of our mission and work. www.flowforwater.org. Join us, read up on background articles, and share. The time for mitigating climate change effects is short.

[1] E.g. Alec L. v. Jackson, 853 F Supp. 2d 11 (D.D.C. 2012).

[2] Juliana et al. v. United States, 2016 WL 183903 (Magistrate., Ore. D. Ct., Order, Jan. 14, 2016).

[3] The public trust doctrine imposes a “solemn” duty on governments, as trustees, to protect certain waters—oceans or inland lakes and streams of the state, or their tributaries, from impairment or from interference with boating, fishing, swimming, bathing, drinking, navigation and other public uses of these waters. See Illinois Central R Rd. v Illinois, 146 U.S. 387 (1892); Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich L. Rev. 471 (1970); James Olson, All Aboard: Navigating a Course for Universal Adoption of the Public Trust Doctrine; 15 Vermont J. Env. L. 135 (2014); see generally, Flow for Love of Water, a Great Lakes law and policy center dedicated to the preservation of citizens public trust in water and nature. www.flowforwater.org.

[4] Juliana v U.S., supra, 2016 WL 183903.

[5] Juliana v. U.S., 217 F Supp. 3d 1224 (2016).

[6] See Mary Christina Woods, Nature’s Trust (Cambridge Univ. Press 2013).

[7] James Olson and Elizabeth Kirkwood, FLOW Report to International Joint Commission on “Draft International Joint Commission 10-Year Review on Protection of the Waters of the Great Lakes Basin,” (June 30, 2015).

[8] Juliana, supra, 217 F Supp. at 1275.

[9] United States v U.S. Dist. Court, 2018 U.S. App. Lexis 5770 (9^th Cir., Mar. 7, 2018); “We’ll See You in Court: Kids Climate Moves Forward After Judge Denies Trump,” www.ecowatch.com/kids-climate-lasuit-trial-2544414443.html. Mar. 11, 2018.

Spring Is Coming

Published on March 12th, 2018 by FLOW Editor - Blog Posts

Although the snow currently falling from the sky would have us believe otherwise, spring is on the way. Tuesday, March 20 is officially the spring equinox, transitioning us out of the stagnation of winter and into the movement and growth of spring. This time of year, the vernal window, brings so many opportunities for observing growth and change. Here are some classic Michigan signs of spring to get you excited for the warmer days, longer hikes, bike rides, and cherry blossoms on the way.

Look

Spring is a time of color and growth. One of the first signs that spring is approaching is willow trees turning yellow before growing their leaves. We will soon see squat skunk cabbage popping out of the soil, with just about every color wildflower you can imagine following behind. If you live in northwest lower Michigan or the Upper Peninsula, keep a special eye out for the Michigan monkey flower, an endangered species native to Michigan. Only found in 15 locations in the world, Michigan monkey flower is extremely rare, so if you are lucky enough to find one, be sure to observe it carefully!

Listen

Spring also marks the northward migration of songbirds, waterfowl, and raptors throughout the state. Some of the first songs you will hear are the familiar American robin and the distinctive sounds of red-winged blackbirds returning to Michigan’s marshes. Listen for mallards and other kinds of waterfowl as ice on the lakes begins to melt away. As the days warm, keep your ears out for spring peepers. These small frogs live near ponds, swamps, and wetlands and have a call that would make you believe they are much larger than one inch long.

Smell

Though the traditional smell of spring is a damp, earthy scent, its earliest indicator is more often the pungent skunk. Skunks spend the winter denned in a state of torpor, a milder form of hibernation. As temperatures warm and food becomes more readily available, these stinky mammals emerge, bringing with them a very distinctive smell of spring.

Taste

For many Michiganders, one of the earliest (and favorite!) signs that we are moving out of the winter months are the ice cream shops reopening. These early cones offer the promise of warmer months to come. After the snow melts, morel and ramp hunting is a popular activity for many. These wild edibles are a delicious addition to just about any meal.

Touch

Although “mud season” doesn’t usually have a positive connotation, spring is the season to embrace the dirt. Feel the soft moss at the base of a tree. Build a mud castle with your kids. Touch a tiny, new leaf. Spring brings with it infinite possibilities to get out and experience nature.

Send us your favorite signs of spring at info@flowforwater.org or share them with us on Facebook!

Why Public-Private Partnerships that Own or Control Our Cities and Towns’ Water and Infrastructure Are Not the Answer

Published on March 8th, 2018 by FLOW Editor - H2Olson

In this space two weeks ago I demonstrated that plans by President Trump and Governor Snyder to rebuild our deteriorating public Infrastructure will force shrinking or financially strapped cities and towns to turn to private water companies and investors. The Trump plan would cut the historical federal 75 percent share of grants or low interest 2 percent loans to 25 percent, and then fund only 20 percent of the $800 billion that’s needed to fix our country’s water infrastructure. Snyder’s Michigan plan would provide state funding of approximately $110 million a year, or only 10 percent of the $1 billion a year that’s needed to maintain and restore Michigan’s infrastructure. It looks like “trickle-down” financing for our cities and towns, with residents facing greater financial burdens and higher risks to health or even loss of water from their taps.

In short, local governments and their residents will be left little choice but to turn to Wall Street investors or large private water firms like American Water Works, Aqua America, and American States Water Company. A number of international water corporations want to seize an even larger control of water supplies, infrastructure, and the revenues from ratepayers. These include Suez, RWE or Thames, Vivendi, and Veolia. Large equity firms are also looking for attractive investments that take advantage of attractive municipal water revenue streams. The reality is that the life expectancy of a large portion of our country’s geriatric public water infrastructure is short, and the move to remove legal or perhaps constitutional barriers to the comingling or outright ownership by private corporations and investors poses a major challenge in the years ahead

Most of our Municipal Water Systems Are Public

About eighty-five percent of municipal water systems in this country are publicly owned and controlled and accountable to residents under constitutional and public governance. Private water corporations own or control the other 15 percent. In the last few years, the experience or prospect of private ownership of public water—Detroit water shutoffs and Flint lead and health crisis– has fomented public opposition if not outrage. Cites like Indianapolis, Pittsburg, and Missoula are taking back their pumps, pipes and taps because of inefficiencies, lack of governance or accountability, high water rates, or broken promises to repair broken infrastructure. Missoula went so far as to exercise condemnation to reclaim its water and water system from the Carlyle Group.

On the other hand, the private sector has increased investment or ownership in public water utilities five-fold in the past 10 years through claims of efficiency, productivity and service, and stable water rates for residents and customers. Private firms argue that private markets bring about efficiency and lower water use; more recently, the private sector claims that because governments are not willing to raise taxes and monies to finance public infrastructure, private equity firms offer a pathway to amassing the vast sums of money necessary to rebuild and repair our infrastructure.

In order to make this pathway more attractive, some states like Pennsylvania and Illinois have passed laws to remove traditional barriers to private investment. For example, municipal water system revenues are protected from raids by the local government council to transfer monies into the general fund. In addition, valuation of municipal water systems is often based on a cost-based accounting discounted for the remaining life of assets. As a result, to make privatization more enticing, Pennsylvania passed a “fair value” law that increases the fair or market value of the water system assets to generate more revenues from a sale for cities faced with financial failure or shortfalls; this included a relaxation on transfer of money from a sale of the system to the general fund.

Privatization or Public-Private Partnerships

The jargon coming from big water companies, private investment firms, the World Water Forum, World Bank, and governments influenced by a “privatize-everything” ideology is called “PPPs” or “P3s”—Public Private Partnerships. What are they?

PPPs or P3s were invented to mute the negative connotation of privatization of water or other public commons and services. They include any form of private ownership or equity investment, leasing, control, or share in revenues in public infrastructure that achieves an acceptable income stream or rate of return for a private corporations, investors, and shareholders. Private equity ownership or investment is just that—private. And if private, there is less government control and accountability. Residents must take their concerns, problems, and complaints to a private concern.

As noted by the Center for Progress in a 2016 report on P3s, PPPs involve a form of privately held investment (although the private corporation may be on public stock exchanges) and require a rate of return on investment of 8 to 14 percent, In part because the income is subject to federal income tax. By comparison, municipal or public infrastructure bonds do not affect public ownership and control of water and infrastructure for residents and customers, and the borrowing cost for municipal bonds currently is around 2.5 percent, and is not subject to federal income tax.

The point is this. PPPs are simply another idiom for privatization based on monopolistic control and private control of the money generated off the backs of residents and customers of water systems in our cities and towns. Because of this, it is important to understand a few things about PPPs or privatization of infrastructure.

PPPs or Public Water and Infrastructure

The real question remains, should public water and infrastructure be privatized? And if a municipality chooses to privatize to raise the cash needed to fix and repair infrastructure, what are the basic principles that should apply? Whether through private or public investment and control, the upgrading, repair and maintenance of this infrastructure will require close to $1 trillion over the coming decade.

Those supporting PPPs claim privatization benefits cash-short communities by offering the money needed to upgrade and repair, promote efficiency and conservation because of the private profit motive. If the Trump administration and states like Michigan squeeze communities by slicing available funds or loans to cover only 25 or less percent of the investment needed to restore our water systems and operations, there may be no choice at all.

So, what are municipalities and their residents in for? Most reports and commentators give privatization and P3s a bad grade. As pointed out by Padraig Colman in the “State of the Nation” series on privatization, The Financial Times called privatization of water “an organized rip-off,” because British companies had sluffed off sewage, polluted waters, and even charged ratepayers to pay for private debt. While less bombastic, here are some of the pitfalls of PPPs or privatization of public water infrastructure and services:

Efficiency from privatization and pricing according to markets or through entrepreneurship is less likely to occur, because the privatization does not create a market, it creates a monopoly.
Moreover, experience in general does not support the claim of improved efficiency.
Because private investors and companies have a legal duty to return money to shareholders, and because income is taxed, there is a constant pressure to raise prices to cover large capital upgrades and repairs and continued satisfactory dividends and share values. Generally, private systems charge more.
Some private acquisition contracts include financing, design, construction, and then maintenance, repairs and maintenance, and can include higher profits built into costs, higher costs of financing, and again higher rates.
Cost-cutting measures sometimes result in poor service and short-change the condition of the systems and risk public health.
Data and information about the operations are private or harder to obtain, so there is less transparency and accountability.
PPPs result in the removal of governance based on fundamental public trust in governments promoting the public interest or the constitutional rights and duties that protect the water, infrastructure, and citizens or residents from inequality, unfairness, and health and environmental risks.

What should residents, officials, public water professionals, and citizens draw from over a hundred years of public water services systems and all of this current debate between public and private ownership and control of our water? In a word, “Beware!” Beware of the dangers and pitfalls of privatization and PPPs or 3 Ps. Beware that one size does not fit all, that there are many variables, local conditions, financial and health exigencies, and the long-term public interest that come into play. Beware that if any form of privatization of public water infrastructure, water sources, or services is proposed, to insist on the following declarations or principles, whether the water system and services are public, quasi-public, or private:

Declare all water public; just because our natural public water commons enter an intake pipe does not mean this water loses its public common and sovereign status. Government at all times must manage and provide water as sovereign for the benefit of people.
Impose public oversight with a duty to protect the public service, public interest, public health, and public trust in water and the infrastructure the water passes through;
Establish rights and Impose duties of accountability, notice, participation, equal access to safe, adequate, clean, affordable public water;
Guarantee principles of due process, equal protection of law, and right to basic water service;
Guarantee affordability and equity in access and use of water by all residents and customers;
Implement fair and innovative pricing, subject to public oversight, a public utility or water board, with a statement of rights, duties, enforcement, and government process to assure safe, clean, affordable public water.

Jim Olson, President and Founder

The next article that will appear in this space on public water infrastructure will explain why water is public, why water in a public or private system must remain public, why the infrastructure itself that carries and delivers public water is subject to a public oversight and legal accountability. It will then describe some innovative approaches taken by public and other water services systems to come to address the challenges they and all of us face in the 21^st century. Water, water infrastructure, and services are not just physical things or “assets.” They are a sovereign commons inseparable from the people, life, and quality of life they support.

Public Trust Tuesday: Private Fish Farms in Public Waters

Published on March 6th, 2018 by FLOW Editor - Public Trust Tuesday

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, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound, and expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.

As FLOW has outlined in its recent Great Lakes fish farming issue brief, the lessons from across the nation and globe are clear:

Non-native fish in floating cages or net-pens occupying public waters inevitably escape and compete with wild fish for food, spread disease, and threaten genetic diversity.
Private fish farms in public waterways undermine public access, recreation, drinking water supplies, sport fishing, and jobs.
Factory fish farming concentrates and releases untreated waste, excess nutrients, and antibiotics and other pharmaceuticals, spurring outbreaks of disease and algae growth.

The bottom line is that it’s the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.

It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”

Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.

Two Poets, a Mermaid, and FLOW

Published on March 1st, 2018 by FLOW Editor - Blog Posts

FLOW is pleased to announce poets Anne-Marie Oomen and Linda Nemec Foster will read from their new book, The Lake Michigan Mermaid, at a fundraiser for FLOW on Thursday, April 19. The reading and reception take place from 5:30-7 p.m. at the Centerpointe conference center, top floor, in Traverse City.

Published by Wayne State University Press for the Made in Michigan series, The Lake Michigan Mermaid tells in poetry the story of a troubled young girl who seeks a mythical creature, the true spirit of the lake, a beautiful mermaid that she believes lives in Lake Michigan waters. The Lake Michigan Mermaid is a tale of friendship, redemption, and the life-giving power of water. Beautifully illustrated by Meredith Ridl, the book is an unforgettable experience that aims to connect readers of all ages.

At the event, the poets will read poems interspersed with the story-of-the story: how the book came to be.

“I’ve long been interested in using place and story to raise consciousness about water, thus my interest in creating a work that incorporates Lake Michigan and offers a new fairy tale,” Anne-Marie says.

Anne-Marie Oomen of Empire is author of Love, Sex and 4-H (Next Generation Indie Award for Memoir), Pulling Down the Barn (Michigan Notable Book); and Uncoded Woman (poetry), among others. She teaches at Solstice MFA at Pine Manor College (MA), Interlochen’s College of Creative Arts (MI), and at conferences throughout the country.

Poet and writer Linda Nemec Foster is the author of ten poetry collections, including the critically acclaimed books Amber Necklace from Gdansk and Talking Diamonds. She has been published in over 350 magazines and journals. She has received nominations for the Pushcart Prize, and has been honored by the Arts Foundation of Michigan, ArtServe Michigan, the National Writer’s Voice, and the Academy of American Poets. From 2003-2005, Foster was selected to serve as the first Poet Laureate of Grand Rapids, Michigan. Foster is the founder of the Contemporary Writers Series at Aquinas College.

For more details about the book: https://www.wsupress.wayne.edu/books/detail/lake-michigan-mermaid

Two Love Letters to the Great Lakes

Published on February 28th, 2018 by FLOW Editor - Blog Posts

LOVE LETTER TO THE GREAT LAKES:

I HAVE ALWAYS LIVED CLOSE TO YOU,

I PADDLED IN YOUR SHALLOWS AS A CHILD, DRINKING IN YOUR TASTE.

WAVES CARESSED MY BACK AS I WATCHED SAND ON THE LAKE BED,

PILED INTO TINY RIPPLES & DUNES…IT WAS MAGICAL!

I DREW MAPS & GAMES WITH MY BIG TOE IN WET SAND ON YOUR SHORE

AND SPENT EVERY SUMMER DAY, EVEN SOME WARM NIGHTS NEXT TO YOU.

SOMETIMES AT NIGHT I WATCHED SILENT WAVES OF “GREEN LIGHTNING”

FAR OFF IN THE NORTH, WONDERING “WHAT COULD THAT BE?”

FAR INTO THE DARKNESS I WATCHED WHITE CRESTS OF WAVES ENDLESSLY CREEPING TO SHORE,

SCANNING THE STARRY SKY ABOVE UNTIL MY SLEEPY LIDS CLOSED

I LEARNED TO SAIL…

ACROSS THE WIND ON A CLOSE REACH, HEELING & “HIKING OUT”

TRYING TO STAY LEVEL SO WE COULD SPEED

TACKING & JIBING WE ROUNDED A MARK ON A RACE COURSE,

YOUR WAVES SPARKLING AND TEASING “GO FASTER!”

WIND ON THE STERN, WE FLEW THAT CHUTE LIKE A KITE PULLING US

TOWARD ANTICIPATED VICTORY.

SOMETIMES WE WERE FORTUNATE TO SLEEP CLOSE UNDER THE FOREDECK

FALLING ASLEEP TO YOUR VARIED & CONSTANT LULLABY LAPPING LAPPING

I STORED THOSE MEMORIES LIKE A MOUSE FILLING ITS CHEEKS

WITH CORN & SEEDS FOR A COMING WINTER,

STUFFING THEM INTO PLACES I DIDN’T KNOW I HAD.

NOW CALLED BACK IN TIMES OF STRESS, IF I CLOSE MY EYES…

I CAN WATCH THE SCENE PLAY IN MY HEAD, SEE RIPPLES & SPARKLES.

FEEL MY TOE SCRIBING THE SHORE.

I AM BACK IN THE SHALLOWS, A CHILD…

I AM RUNNING BEFORE THE WIND, LAUGHING…

I AM AT PEACE WITH STARS & THE UNIVERSE ABOVE

AND I WILL FALL ASLEEP TO THE LULLABY LAPPING LAPPING

-Libbet Paullin Terrell

Red Queen Waves

When the Red Queen led Alice

To the chessboard field

Where horses, towers, and men and women

Common, knightly, priestly and royal

Would play their match

(This was after giving an etiquette lesson

And explaining she owned all the ways

So that none were lost without her leave)

She ran pell-mell

The child hanging on tight and trying to keep up

But the scene around them, instead of blurring

Stayed the way it was.

Had they not run that fast, she said,

The world instead

Would push them back

At a pace to make the head swim.

You must move fast to stay in one place.

Evolution, I read, works that way.

All that lives must run, fly, swim,

hide, fight, feed, grow, multiply

To keep pace with a changing world

Or else be swept away

As those in the Red King’s dreams when he wakes.

Alice herself would make a crossing

Playing in the place of the White Queen’s little pawn-princess,

Through an oddly organized train ride,

Wondrous insects,

A wood where names wane,

Meeting those who step out of nursery rhymes–

Two who battle over a ruined rattle and flee a crow

An egg precariously on a wall

Who works words to his own will

Two out of a coat of arms

Vying for a crown that’s not their own

Along with eccentric pieces–

The queens assume different forms

And one white knight bears many inventions–

And two familiarly mad messengers

Until she reaches the farthest space

And ascends to a crown, title and feast

All the while, there is much she must stay ahead of

Before passing through the mirror again,

All the while collecting verses…

Many of those who live in the water

Mammal, mollusc and fish…

In the inland sea near where I live

Sometimes the waves are strong enough

To reflect the Red Queen’s statement for me:

As all the beasts, fishes and molluscs do,

Stride, tread, cling or swim as hard as you are able

To stay in one place;

I butterfly or crawl freestyle

Just enough to keep that pace,

But only in short bursts

Before needing to rest,

Lest I collapse like a bread-and-butter-fly

That has had no cambric tea.

Yet I would often fly to it

As an aspiring snap-dragon-fly to a lamp;

For if I can’t keep a queen’s swimming pace

I go with the flow towards shore,

Leaping in the waves, swaying to and fro

As a rocking-horse-fly moves from branch to branch

(Minding large hidden stones as I go),

Wordlessly curtseying in the waves’ wake

Freely acknowledging the lake’s Majesty.

-Emily Baker

Help Stop an Attack on Michigan’s Water

Published on February 27th, 2018 by FLOW Editor - Blog Posts

Should Michigan law make it easier for special interests to grab large amounts of water without public oversight?

Most citizens would say no, but the Michigan Legislature is considering a “yes.” The State House of Representatives Natural Resources Committee will hold a hearing Wednesday, February 28 at 9 a.m. on a bill, HB 5638, giving automatic approval to proposals for major water extraction projects by agribusiness – shifting the burden to the state DEQ to prove such proposals will be harmful.

Even worse, the data justifying the extraction would be exempt from the Freedom of Information Act. The public would be denied the critical information used to decide new large quantity water withdrawals, the impact they are causing, or how they were approved.

As FLOW Executive Director Liz Kirkwood said of this and other recent legislation, “I think what these new bills represent is a new strategy to just wholesale remove the state of Michigan’s oversight of its public water resources.”

You can help protect Michigan’s water by:

Contacting members of the House Natural Resources Committee (scroll down to “Natural Resources”).
Contacting your own State Representative.

Our water wealth supports and sustains multiple water-dependent sectors of Michigan economy – industry, tourism, recreation, commerce, and agriculture. The Water Withdrawal Assessment Tool (WWAT) is a vital tool in ensuring that water remains plentiful and available to fulfill future needs.

HB 5638 circumvents the WWAT by allowing a company to secure a water permit based on a presumption of no harm backed by its own hydrogeological reports and information. This information would be exempt from FOIA; in effect this is a license to steel water from our creeks, watersheds, wetlands, a license to cause harm.

In MCWC v. Nestle, the Michigan Court of Appeals ruled that under our common law any water use or withdrawal must maintain adequate water in the stream to sustain the ecology of the stream and to sustain the other uses made of the water by others. HB 5638 violates this rule of law.

Moreover, Art 4, Sec. 52 of our State Constitution mandates that the legislature “shall provide by law for the protection of water and other natural resources from impairment or destruction.” HB 5638 will result in impairment and destruction of water resources of state, and therefore violates the Michigan Constitution.

Availability of data to state and federal agencies and local governments is essential so that government can administer our water laws sustainably and provide proper oversight and stewardship. We now have the data and analytical tools and capabilities to exercise extraordinary foresight in ensuring that water is used sustainably and is always available for our future needs and future generations.

HB 5638 undermines the legacy of good governance to which you have aspired. The bill is a step backward – instead of supporting a more robust understanding of water availability, it reduces the amount of data and information available, interfering with our ability to make informed decisions.

Once More: Line 5 and the Public Trust

Published on February 27th, 2018 by FLOW Editor - Public Trust Tuesday

Perhaps if they hear it often enough, they’ll act.

Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.

It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago. Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust. The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.

Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010.

FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.

Here are a few of Liz’s comments from Monday:

“We are approaching the hour of decision on the fate of Line 5. This process has been an epic example of how not to protect a world-class resource. Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.

“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed. This new design was not contemplated in 1953. Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.

“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best. The state owes Enbridge nothing. Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”