Tag: great lakes

Thankful for Lake Huron

Published on November 20th, 2018 by - Blog Posts

During this week including Thanksgiving, FLOW staff are reflecting on their thankfulness for water. Whether it’s the vast and variable nature of Lake Huron or the water running from a household tap, water is at the center of our lives and our gratitude. We hope our writings inspire your reflection as well. Happy Thanksgiving from FLOW! 

I am thankful for Lake Huron, sometimes called the forgotten Great Lake.  It’s not the biggest, the most popular or the most celebrated Great Lake. But during the three years I lived on its shore, I came to know and appreciate its subtleties and charms.

Lake Huron was patient in winter.   Ice clotted the creeks and drains that ordinarily contribute to it, but they would soon resume their flow; of course, they were already flowing under winter’s glassy surface.

Lake Huron was resilient.  A storm would thrash it, but a day or two later, the lake would rest contentedly, a match for any tempest.

Lake Huron was a changeling.  One day the blue of a child’s lake drawing, one morning silver; one day muddy brown, one evening gold.

Lake Huron was vast.  Gazing out over its open waters, I felt a connection to the thousands of years it has endured, the 23,000 square miles it occupies, its 3,827 miles of shoreline.

Living next to Lake Huron was like living next to a mountain.  The lake was always in my consciousness.  Often that was because of the beat of the waves.  The repetition was comfort, the way a rocking cradle is to a baby. 

The second largest of the Great Lakes, Huron is the fifth largest lake in the world.  It doesn’t boast.  It just is.  I am thankful that it is.  I highly recommend it to others.

A Fresh Start for Fresh Water in Michigan

Published on November 7th, 2018 by - Blog Posts

It is a fresh start for fresh water in Michigan.

Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.

Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.

Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.

At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.

Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”

If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.

Vote for Water: Michiganders Can Choose Great Lakes Protection and Prosperity

Published on November 5th, 2018 by - Blog Posts

By Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.
All photos courtesy of Paul Hendricks.

Every fall, strong north winds bring in a steady flow of storms that rip across the Great Lakes. You’ve probably witnessed one of these storms, where waves crash over pier heads and howling winds cut through your parka, chilling you straight to the bone. Over the years, these storms have tormented sailors, bringing thousands of ships to the icy lake bottoms. These days, they beckon surfers to brave the chilling waters in search of “unsalted” swell. From any perspective, there is something powerful about this time of year on the Lakes. It is raw, unharnessed nature that is both beautiful and prideful for those who call these waters home.

Right now, there is a different kind of storm brewing on the Great Lakes. For 65 years, a decaying pipeline known as “Line 5” has been pumping 23 million gallons of oil each day through the heart of the Great Lakes. Operated by Enbridge Energy – who was responsible for a 1.1 million gallon oil spill in the Kalamazoo River in 2010 – this pipeline is 15 years past its expected life. And it’s showing: Researchers have documented cracks, dents, bends, gouges, and failed supports on the pipeline’s path through the Straits of Mackinac, putting our freshwater and over 700 miles of our coastline at risk.

Concerned citizens have been fighting for the decommissioning of this line for years, believing that the Great Lakes – our public waters – are not worth risking for the short-term economic gains of a private company. These lakes provide the basis of this region’s identity and economy – 1.5 million jobs and over $62 billion in wages every year.

Yet, Enbridge Energy has been fighting to keep the oil flowing – touting the pipeline’s “as good as new” condition and importance on the region’s economy. Photo evidence of the decrepit pipeline and documentation of only 102 Enbridge employees in Michigan prove these claims don’t hold to the wind. To add insult to injury, Enbridge struck a deal with Governor Snyder to “explore” digging a tunnel to house Line 5 through the Straits, a billion-dollar deal that doesn’t stop an oil spill from happening.


I work for Patagonia, Inc., a company that makes apparel for outdoor recreation – skiing, hiking, climbing, fishing, surfing. We are a successful business, with growth that has far eclipsed our industry’s average – success which we attribute to our obsessive dedication to minimizing our impact and maximizing our influence to protect our most treasured natural resources.

Our company’s mission statement reads, “Build the best product, cause no unnecessary harm, use business to inspire and implement solutions to the environmental crises.” In that statement, we acknowledge that our business will always cause some amount of harm, but we are mandated to not cause unnecessary harm – through claiming responsibility for our impacts and reducing them wherever we can.

Paul Hendricks, Manager of Environmental Responsibility, Patagonia, Inc.

Line 5 is the epitome of unnecessary harm. It has been proven that the oil flowing through Line 5 can be redirected through existing infrastructure that doesn’t put the Great Lakes at risk.  By asking to decommission Line 5, nobody is asking Enbridge to go out of business, but to act responsibly, and respect this region’s greatest resources.

This month, the Line 5 storm is coming to a head as our politicians are making decisions that will last for the next 100 years. As Michiganders head to the polls on Election Day, I urge you to think through the multi-generational impact your vote will have on this region. Vote for policy makers that value the lasting protection of this region’s backbone. Vote for Water.

Legal Fact from Legal Fictions

Published on October 9th, 2018 by - Blog Posts, H2Olson, Public Trust Tuesday

A Preface

When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.

The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.

The Michigan-Enbridge “Second Agreement”

Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.

  1. This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
  2. Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
  3. Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
  4. The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
  5. The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
  6. The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
    • Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
    • There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
    • The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
  7. There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
  8. Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
  9. It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.

Jim Olson, President and Legal Advisor

So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.

New Book: A Great Lakes Journey Toward Advocacy

Published on October 5th, 2018 by - Blog Posts

 Author Mary McKSchmidt will discuss and read from her new book, Uncharted Waters: Romance, Adventure, and Advocacy on the Great Lakes, Saturday, Oct. 13 from 1-3 p.m. at Horizon Books in Traverse City.

Mary McKSchmidt is an adventurer—a woman who has wandered across southern Africa; achieved success in positions typically held by men; hikes, bikes, and camps alone; and joins her fun-loving, equally-adventuresome husband on sailing voyages across the sometimes treacherous, always unpredictable, waters of Lake Michigan. When she discovered that Lake Michigan and all the Great Lakes are at risk, potentially damaged beyond repair, she replaced her briefcase, calculator, and business suit with a notepad, camera, and foul weather gear and embarked on a new adventure, this time to help create the political will necessary to clean up and protect the lakes.

McKSchmidt’s Uncharted Waters is the story of a Fortune 500 executive learning to sail, learning to love, and learning to fight for the water and life she holds dear. It’s not just a love story, but also a call to action. It serves as a reminder that while we can live without many things, clean, safe drinking water is not one of them.

FLOW asked Mary to explain how citizens can get active to protect the Lakes.

“I have yet to meet anyone who has touched the waters of the Great Lakes, seen their beauty on a clear, sunshiny day, or experienced the joy of sharing a picnic with family along their shores, who does not care deeply about the future of the Great Lakes,” she began. “These lakes are not a Republican or Democrat issue, not an issue for liberals or conservatives. These lakes are an issue of life and health.”

She continued: “And yet, the Great Lakes are at risk. Their future depends on us—on our ability to ignore the threads of apathy, cynicism, or despair running through us. We are their voices.”

In this election year, she said, citizens can do three things:

  • “Vote. No vote, no voice. But vote on behalf of the Great Lakes. Support only those candidates willing to fund their cleanup, willing to commit to making access to clean, safe drinking water a top priority.”
  • “Support nonprofit organizations advocating on behalf of our lakes and our watersheds. Representing thousands of voices, these organizations bring power to the negotiating table. And facts. Like lighthouses guiding us through the turbulence of the legislative and political arenas fundamental to our democracy, these organizations stay abreast of the many issues plaguing the lakes. They tell us when our signature on a petition or presence at a public hearing can influence change.”
  • “Pick up balloon ribbons and trash littering our beaches, our dunes, and our waterways. Something this simple serves as a reminder. Little things matter.”

She added, “Just as I must balance the forces of nature while behind the wheel of a sailboat, I discover I must heed the voice of my heart as well as my mind to reach those I hope to engage in creating the political will necessary to prioritize the lakes so integral to our lives, so easy to take for granted.”

Mary is a former executive for Baxter Healthcare, a Fortune 500 company, who writes under the pen name “Mary McKSchmidt.” She is a contributor to Michigan Blue and Sail magazines, a former columnist for The Holland Sentinel, and has written op-ed pieces for MLive. Her essay “Behind the Lens of a Camera” was also selected to appear in the 2016 Bear River Review.

The poet and photographer of Tiny Treasures: Discoveries Made Along the Lake Michigan Coast, along with her 2018 release Uncharted Waters: Romance, Adventure, and Advocacy on the Great Lakes, Schmidt is a natural storyteller who has shared her adventures with audiences at garden clubs, professional women’s organizations, state and county nature centers, assisted-living facilities, and environmental organizations throughout West Michigan. Her monthly blog and “Skosh of Poetry” may be found at www.marymckschmidt.com.

A Warm Welcome to Our New Deputy Director, Kelly Thayer

Published on October 2nd, 2018 by - Blog Posts

It brings me great pleasure to announce that Kelly Thayer has joined the FLOW team as our new Deputy Director. Kelly will play a lead role in strategic communications and overall program development and implementation. We have dreamed about this day for a long time.  

Kelly Thayer, Deputy Director

Kelly is a familiar face and name to many already, as he has worked with FLOW since 2014 as a communications consultant. Among other things, he has coordinated and supported FLOW’s involvement in the Oil & Water Don’t Mix campaign to shut down the aging, cracked, and corroded Line 5 oil pipelines in the open waters of the Mackinac Straits, where Lake Michigan and Lake Huron meet.  

There’s no doubt about it, but Kelly has a way with words. And that’s not surprising, given his Master of Arts in Journalism and Bachelor of Arts in English Literature from the University of Michigan, followed by his early newspaper career here in Michigan and Wisconsin.

In addition to being a gifted writer, Kelly is a wonderful communicator, researcher, and community organizer. His leadership has enabled him to work successfully on a diverse array of local, state, and national environmental campaigns. He served as volunteer co-chair of successful election campaigns to launch a countywide public bus transit system in 2006 and to renew its funding by a 3-1 margin in 2011 in Benzie County. Kelly also helped to build and co-direct state and local coalitions to advance people-centered transportation policies and projects in Michigan from 1998-2005 while working with the Michigan Land Use Institute (now Groundwork Center for Resilient Communities).  

Since 2005, Kelly has worked as a consultant at The Resource for Great Programs, a national firm working to strengthen foundations that support, and nonprofit law firms that provide, free civil legal aid to people in poverty across the nation.

What else? Kelly and his wife Carolyn also volunteered in the U.S. Peace Corps in Tanzania prior to starting their family. They have two amazing boys: Alex (18), who just started the engineering program at University of Michigan, and Quincy (15), who loves fishing, cross-country running, surfing, skiing, and skateboarding.

Make sure you get a chance to meet Kelly. He loves these Great Lakes as much as you do.  

 

-Liz Kirkwood, Executive Director

FLOW Releases Report to Save Our “Sixth Great Lake”

Published on September 25th, 2018 by - Blog Posts, H2Olson

Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities:  Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.

Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health.  This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.

After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released.  Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.

This historic and remedial action by our country’s elected leaders established a legal principle and   rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994.  Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”

In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk.  Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.

From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.

In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”

For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.

There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.

Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?

How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.

Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.

Jim Olson, President and Founder

Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.

We Need Another Great Lakes Agreement

Published on August 27th, 2018 by - Blog Posts

Toward the end of Dan Egan’s award-winning book, The Death and Life of the Great Lakes, the author observes that in the 1960s Michigan unilaterally planted exotic salmon in the Lakes.  The action produced a new sportfishery but also changed the ecology of the Great Lakes in unforeseen ways, with consequences that all the people of the Lakes had to bear.

Now, Egan says, emerging technologies formerly the stuff of science fiction may yield solutions to invasive species challenges.  A DNA-based eradication tool could wipe out an unwanted fish species, even the detested zebra and quagga mussels. But if experience tells us anything, it is that the application of such a tool could alter the Lakes in ways not anticipated.

“Would a single Great Lakes state today try to act on its own and release a manmade gene in a similar fashion?” Egan asks.  “If not, would it take a unanimous vote by all the Great Lakes states? What about the Canadian provinces? What about the federal governments?  What about the prospect of mischievous, if well-meaning individuals or groups acting on their own?”

He quotes Russ Van Herick, former director of the Great Lakes Protection Fund: “We are not even close to developing a governance system to catch up with these emerging technologies.”

We aren’t – and we barely know how to conceive of decision-making criteria.  How do we determine what kind of Great Lakes we want? And who decides?

Numerous Great Lakes institutions exist and so do numerous Great Lakes agreements, both formal and informal.  Most important are the binational Great Lakes Water Quality Agreement, which addresses pollution and the interstate Great Lakes Compact, which addresses water diversions.  

But there is no overarching agreement among the governments – including tribes and First Nations – and among their peoples on how to address the even broader Great Lakes challenges of the 21st Century.  There is no agreement on an ecosystem philosophy – a standard of care by which all governments and peoples will abide – and a decision-making system to carry it out.

So now it’s time for a Great Lakes Stewardship Agreement.  Although its substance will take time to develop, it must be rooted in two bedrock principles:

  • The Great Lakes are a public trust belonging to the people, with governments acting as trustees to assure that trust is undiminished over time; 

    Dave Dempsey, FLOW Senior Advisor

  • Decisions that have any potential to affect the Great Lakes as a whole – whether it’s the introduction of a DNA-based invasive species eradication tool, construction of “speed bumps” in the St. Clair River to raise the level of Lakes Huron and Michigan, or manufacture of a new chemical that might bioaccumulate in the Lakes ecosystem – must be subject to full transparency, including an open public consultation and the consent of the governed.

The original Great Lakes Water Quality Agreement took several years to negotiate and implement.  The Great Lakes Compact took a decade. So there’s no time to waste – the future is upon us. The fashioning of a Great Lakes Stewardship Agreement must begin today.

U.S. Senate Hearing Sets the Stage for Turning Off Dangerous Enbridge Line 5 in Great Lakes

Published on August 22nd, 2018 by - Blog Posts, H2Olson

Line 5 Pipeline

Michigan Senator Gary Peters, ranking member of a Senate committee overseeing hazardous pipelines, held a public hearing in Traverse City, Michigan Monday, ground zero in a race to turn off Enbridge’s 65-year old Line 5 before it spills millions of gallons into the Straits of Mackinac and blackens the water, life, and economy of the Upper Great Lakes. Senator Peters called the hearing to open an investigation and find solutions to reform a patchwork of ineffective federal regulations that lack authority and power to shut down pipelines that threaten the health and safety of residents, businesses, schools, and communities across the country. What better place to start than Line 5 in the heart of the Straits and Great Lakes?

Senator Peters convened two panels: one made up of an Enbridge upper-level executive and federal officials from the Pipeline Hazardous Materials Safety Administration (PHMSA), the Coast Guard emergency response team, and National Oceanic and Atmospheric Administration (NOAA); the other filled with representative leaders from conservation, labor, and business across the region. After their testimony and questioning from a well-prepared, sometimes passionate Senator Peters, and applause from a sympathetic audience, the message was clear—we need legal reforms, and we need them now, to fix the holes and fragmentation in current regulations.

Monday’s public hearing may well be the tipping point to turn off the rush of 23 million gallons a day through a pipeline that is outdated and failing the dictates of its original design. It may also be the year of reckoning for the Snyder Administration’s and Attorney General Schuette’s game of footsie with Enbridge that has, in my opinion, imprudently gambled the soul of our state’s water, life and economy by helping Enbridge keep Line 5 open for gushing crude oil from Alberta to Sarnia far too long. Here’s why.

After four years of state task forces, boards, studies and exercises to clean up a mock spill, nothing has happened except permission to Enbridge to keep Line 5 going at full tilt. During this same time, National Wildlife Federation, FLOW, the Grand Traverse Band of Ottawa and Chippewa Indians, and other tribes and organizations have filed compelling scientific, technical, and legal analyses and reports that have more than documented what is now obvious: Crude oil in Line 5 in the Straits and over or near tributaries that flow to Lake Michigan and Lake Huron constitutes what is known in the hazardous risk industry as a “Tier 1″ risk. It must be avoided, and reasonable alternatives exist– that is, Line 5 in the Straits or waters of the Great Lakes is not essential for Canada, Enbridge, or Michigan and its residents.

A “Tier 1″ risk means that the magnitude of harm is so devastating or grave, that principles of risk management require those responsible to implement both a temporary and a long-term solution that removes and avoids the risk entirely. In plain terms, this means that if there is an alternative to a pipeline that is unacceptable under any circumstances, the alternative must be implemented, as long as it reasonably achieves the overall purpose of avoiding the risk and allowing a means through some other route to continue transporting crude oil.

In the last four years, it has become clear, as reinforced by Senator Peters at the start of the hearing, that the Straits is “the worst place for an oil pipeline in the Great Lakes,” and that we must find a way to take hold of this unacceptable risk and end it. For example, strong currents have continuously scoured the rocks and soil under the heavy pipeline designed to lay on the bottom of the lakebed; in an attempt to patch a failing design, Enbridge, with the help of Michigan’s DEQ, has been able to install anchor supports to elevate the line above the lakebed since 2001 as a “repair,” with little to no notice to the public. There are now 150 supports holding up the line, and an application to the DEQ for 48 more. That means nearly three miles or one-third of the original design has been totally changed, and the stage is set for more and more “repairs” without any application, determination, and legal authorization as required for altered and new pipeline designs or structures on the bottomlands of the Great Lakes under our Great Lakes Submerged Lands Act. If our leaders forced Enbridge to apply for new authorization of this serious, never-before-reviewed change, Enbridge would have to show no “Tier 1″ risk and no alternative– finally, the substance and risk and fate of the Straits and Great Lakes and citizens would be under the rule of law.

Also, in the last four years, strategic organizing from Oil and Water Don’t Mix, a consortium of organizations like Groundwork Center, Michigan Environmental Council, Sierra Club, the tribes, Northern Michigan Environmental Action Council, and many others have fostered tens of thousands of letters, public comments, all urging state leaders to end this catastrophic risk that puts oil above the state’s and its citizens’ paramount interest and public trust in water and the Great Lakes.

Nearly 70 communities have passed resolutions calling for decommissioning or ending the flow of oil in Line 5, as have approximately 15 tribes and tribal organizations. This has led to a Pipeline Advisory Board questioning the lack of action by the state, conflicts of interest in a risk study, and questioning whether Line 5 should be allowed to continue in light of reasonable adjustments and alternatives elsewhere within Enbridge’s larger system.

Then, last fall, Governor Snyder announced he’d signed an agreement with Enbridge that allows Enbridge to pick an option to replace Line 5 with a new line in the Straits. In other words, Enbridge was given the green light to replace Line 5, continue Line 5 in the Straits until the replacement was operational in seven years, and avoid the rule of law.

No wonder Senator Peters held the hearing to launch a process to find out why the federal regulatory framework hasn’t done more. As urged by the Senator and agreed to by other panelists at the hearing, the Straits and Great Lakes demand a far more responsive legal framework than PHMSA safety code inspections and wrist slapping or Coast Guard after-the-fact response and cleanup actions. And it’s not just the Great Lakes. There are thousands of miles of crude oil pipelines and thousands of communities, lakes, streams, groundwater, drinking water and other sensitive environments that have been damaged or are threatened.

We need go no farther than the 2010 Enbridge Kalamazoo River rupture and disaster or the Deep Horizon debacle in and along the beaches of the Gulf of Mexico.

Based on the testimony of the panelists and careful questioning of Senator Peters, here is what the record looks like and what we might expect to address Line 5 and many other oil pipeline risks across the United States and, hopefully, beyond our borders.

First, after accidents like the anchor strike that broke the utility line, released pollutants into the Straits and was reported by Enbridge to have dented Line 5, inspections by PHMSA review the company’s evaluation and self-reporting, and the Coast Guard completes assessments of conditions and response actions only after a spill of pollutants. As it turned out, PHMSA did not independently inspect the dents. The Coast Guard has no jurisdiction except to respond to the spill of the pollutant from the utility line. Fortunately, an assessment and inspection performed 2.5 weeks later revealed a “gouge,” not just a dent.  

Second, while PHMSA has legal authority to force shutdown of a pipeline, it has never ordered one decommissioned and removed. The state, through its public trust authorities, has the power to do so, but so far, it seems, has done everything possible not to shut down Line 5.

Third, Enbridge and others maintain that the Great Lakes and Line 5 are not “offshore” hazardous or crude oil pipelines, and are not regulated as strictly as offshore lines and oil wells. The U.S and Michigan supreme courts have consistently ruled that the Great Lakes are seas, like the oceans, and subject a high-degree of protection under the public trust doctrine.

Fourth, PHMSA has not certified the Great Lakes as a critical “environmentally sensitive” area that would impose, at least, stronger safety measures, inspections, or assessments.

Fifth, inspections and assessments are not “hands-on” and are often delayed or too late to quickly determine the gravity of the condition of a pipeline.

Sixth, there is no legal process under federal law or regulations that comprehensively regulates, assesses, and determines whether to shut down high risk pipelines– those that have failed or those in sensitive areas like the Great Lakes. So, while most states, like Michigan, have the authority to locate or terminate high risk pipelines, particularly where they are old, failing, and alternatives exist, the federal government has no framework to do much at all.

Senator Peters has done a great service, and his Senate Commerce Committee needs to carry the day by continuing, as directed by the senator, to record and investigate. The goal should be to establish a framework for the Senate, with the help of experts and citizens, to find a way to overhaul these laws and rules that are supposed to protect the public. For starters, here are some suggestions:

  1. Amend federal laws, such as the Clean Water Act or the PHMSA authorizing law, to establish an authority for the certification of oil and other hazardous liquid or materials pipelines.
  • New pipelines would have to go through an application, hearing, full transparent information and disclosure, evaluation and study process to determine the risk, potential impacts and damage based on a true “worst case scenario,” and the full range of feasible and prudent alternatives.
  • Old pipelines, say older than 40 years, or less if beyond their “useful safe lifeline” would have to apply for certification, showing that they do not involve high risks or catastrophic harm or serious impacts based on a worst case scenario, and if the risk is high, they must be shut down if there exists a feasible and prudent alternative or the operation if continued could result in a high-magnitude of harm to the public health, safety, and welfare.
  • New pipelines proposed for the Great Lakes or equivalent paramount public trust waters or natural resources are prohibited.
  • Owners and operators of old pipelines in, over, or under the Great Lakes or equivalent public trust waters and natural resources must apply for certification and a determination that there is no feasible and prudent alternative with reasonable adjustments to other routes, design capacities, and locations within the overall crude oil pipeline system and logistics; if there is no feasible and prudent alternative, there would be a determination of remaining “useful life” and that the risks are less than a “Tier 1″ based on a competent credible worst case scenario.
  1. All applications, and supporting materials would be public records and made available, all applications would be subject to public hearings, comments, and testimony by all interested persons and members of the public, and there would be direct citizen suit enforcement similar to that in the Clean Water Act.
  1. All applications would be subject to the National Environmental Policy Act environmental impact statement process.
  1. Federal agencies involved would cooperate with state agencies, including shared jurisdictional and information agreements, and the federal process would not preempt or supplant the state process. State proceedings involving use or potential impact to their sovereign water and other natural resources, or public trust interests in those resources, would not be preempted and could impose more stringent standards or otherwise reserve the state’s property power and public trust in its waters and natural resources to prohibit any existing or proposed new pipeline (which is the law in Michigan and other states today).

Jim Olson, President and Founder

In short, thank you, Senator Peters and the Senate Commerce committee, and those panelists who participated in the hearing Monday: It is far better to remove these regulatory holes with a comprehensive approach to prevent unacceptable risks entirely than to face the catastrophe of a gaping hole in Line 5 in the Great Lakes or other high-risk lines across the country.

State-Commissioned Line 5 Risk Analysis Underlines Urgency of Shutdown, FLOW Says

Published on August 21st, 2018 by - Reports & Media Releases

FOR IMMEDIATE RELEASE                                                                      August 21, 2018

Even the significantly understated economic impacts of a spill from Line 5 at the Straits of Mackinac in a state-commissioned analysis reveal a fiscal and human price tag too high for the people of Michigan, FLOW (For Love of Water) said in comments submitted to Lansing officials before Sunday’s deadline.

FLOW submitted the comments to the state on a draft Independent Risk Analysis coordinated by Dr. Guy Meadows of Michigan Technological University that was released in July.      

The Traverse City-based Great Lakes law and policy center said that while the state-commissioned analysis rests on excessively conservative assumptions that lead to underestimates, the potential $2 billion economic impact it calculates is unacceptable and justifies an immediate shutdown of the twin petroleum pipelines owned and operated by Enbridge Energy. The company was responsible for the largest inland oil spill in U.S. history when its Line 6B ruptured and contaminated the Kalamazoo River watershed in 2010.

An analysis released by FLOW in May and conducted by ecological economist Dr. Robert Richardson of Michigan State University estimated impacts and damages of over $6 billion from the same approximate volume of spill used as an assumption in the state-commissioned study.

“A Line 5 spill will ravage Michigan’s economy and environment no matter which estimate you use,” said Liz Kirkwood, executive director of FLOW.  “The state-sponsored report confirms that the economics of Line 5 are bad news for the people of Michigan and our precious Great Lakes.”

FLOW said the state-commissioned study’s flaws understate the potential impact; for example:

  • Short-term impact? The study wrongly assumes that an oil spill in the Straits will only have a short-term effect on the region’s tourism and recreational economies, commercial shipping industry, commercial fishing, and coastal property values.  It bases the short-term economic impact assumption on a recreation assessment for the Deepwater Horizon oil spill in the Gulf of Mexico in 2010.  However, that spill occurred roughly 41 miles off the coast of Louisiana, while a potential Line 5 spill would occur approximately two miles offshore at most. This proximity to the shoreline and coastal communities amplifies the impacts of a Line 5 spill.
  • Quick cleanup? The study grossly underestimates the amount of time it will likely take to remove the dispersed oil, to the extent even possible, and start restoring the water and shorelines of Lake Michigan and Lake Huron. If the Line 5 spill estimated in the state-sponsored study were to occur, and approximately 441 miles of shoreline were affected, cleanup crews would have to restore over a mile of beach every day to ensure the shoreline would be in condition for the next summer season, when the majority of Michigan tourism and recreational activities take place.
  • No lasting harm to the Pure Michigan brand? The study does not account for any lingering stigma that a catastrophic environmental disaster would likely cast. The long-term taint and diminution of property values from a release of hazardous substances and water pollution are well documented. The Risk Analysis assumes the reduction in the value of lakefront properties would only amount to $2.6 million.  Richardson’s analysis estimates a multi-year impact of over $485 million in coastal property values.
  • Loss and damage to people, communities The Risk Analysis acknowledges that “mental health issues are a significant concern after disasters such as a potential oil spill at the Straits of Mackinac.” As significant as the effects to mental health on residents and tribal members, the Risk Analysis fails to discuss the potential costs of long-term mental health counseling, therapy, and other services needed to prevent or treat the mental health symptoms caused by a worst-case scenario Line 5 spill. The Risk Analysis also fails to evaluate the risks to the public drinking water supply on Mackinac Island, as well as the emergency response plan that would have to be implemented to ensure Mackinac Island residents and visitors have adequate drinking water supplies after a spill.

FLOW said state officials, as public trustee of the waters, should require Enbridge to submit and demonstrate through a comprehensive alternative analysis that there are no other feasible and prudent alternatives to the continued operation of Line 5 in the Straits of Mackinac. At a minimum, state officials must demand that Enbridge demonstrate that they possess sufficient liability coverage for all liabilities and/or damages stemming from the worst-case scenario Line 5 spill outlined in the Risk Analysis. Enbridge has made no attempt to do so, instead calling on the state and citizens to trust that another Kalamazoo River-scale disaster won’t happen again. 

“Trust is no substitute for hard evidence,” Kirkwood said. “Enbridge has continually failed to demonstrate it can be trusted with the future of our great waters.”