Tag: jim olson

Happy Birthday to Jim Olson: Legal Lion for the Environment

By Dave Dempsey

Those working on Michigan environmental issues at any time during the last 50 years have known exactly who the pioneering legal advocate for Michigan’s precious air, water, and land is: FLOW founder Jim Olson. As Jim’s 77th birthday approaches on February 26, it’s time to take stock of all that he’s accomplished in the service of current and future generations.

Jim became attached to the outdoors at an early age. His parents moved the family, including Jim’s two sisters and two brothers, to Traverse City. He recalls propelling a home-made raft with his brothers up and down the shore of the east arm of Grand Traverse Bay. “We grew up in and on the bay, felt its cold and warm temperatures, sensed its sweetwater smell, moods, its seasons and cycles…,” Jim recalled.

“We grew up in and on the bay, felt its cold and warm temperatures, sensed its sweetwater smell, moods, its seasons and cycles…,” Jim Olson recalled.

Professor Joe Sax (1936-2014)

It was logical, then, that Jim would find a calling and a cause in defending the environment. After earning his law degree from the Detroit College of Law and clerking for a Michigan Supreme Court justice Thomas Brennan, Jim was impressed by a talk on the public trust given by University of Michigan Professor Joseph Sax, who authored the Michigan Environmental Protection Act (MEPA). He returned to school to study under Sax, earning a postgraduate Master of Law Degree from the University of Michigan Law School in Public Lands, Natural Resources and Environmental Law. Jim shared and advanced the Sax belief in the strength of the public trust doctrine as a tool in protecting the commons—particularly our rivers, inland lakes, and Great Lakes.

Jim has used his legal skill to protect citizens from exposure to toxic PBBs, protect public access to the Great Lakes shoreline, and prevent pollution of the legendary Au Sable River watershed. Dedicated to equal justice for all, Jim also was involved early on in litigation to protect indigenous treaty fishing rights.

Challenging Nestlé’s Groundwater Grab & Enbridge’s Line 5

In perhaps his most famous case to date, Jim worked for the better part of a decade with Michigan Citizens for Water Conservation (MCWC) to challenge state approval of a major groundwater withdrawal by Nestlé. Jim and MCWC successfully limited Nestlé’s water-bottling grab.

Peggy Case, MCWC Board President

“Jim has worked tirelessly to defend water, the public trust doctrine, and the right to clean, affordable water for all. He has fought against all forms of privatization of water as well,” said Peggy Case, board president of MCWC. “As an attorney, he has given countless hours of his time to these efforts and has also donated many hours of pro bono work to those working at the grassroots level on these issues…. He will always be there lending a voice to the work and showing support for those who will try to fill his shoes.”

“Jim has worked tirelessly to defend water, the public trust doctrine, and the right to clean, affordable water for all. He has fought against all forms of privatization of water as well,” said Peggy Case, board president of MCWC.

A major milestone in Jim’s career was Governor Gretchen Whitmer’s revocation and termination of the Enbridge Line 5 pipeline easement across the Straits of Mackinac. Citing the public trust doctrine, Gov. Whitmer determined that Enbridge had violated the easement terms. Although it’s being contested in the courts, the state’s action has the potential to sweep across the nation as a model for protecting the public’s natural resources.

Upholding the Public Trust & the MEPA

Maude Barlow

Along with Maude Barlow, then with the Council of Canadians, Jim introduced the six members of the International Joint Commission (IJC) to the public trust doctrine. As a result, the IJC endorsed the doctrine as part of a strategy for cleanup of Lake Erie and preventing diversion and export of Great Lakes waters.

Lana Pollack

Lana Pollack was U.S. Section Chair of the IJC at the time. She describes Jim as “a visionary who sees the world as it should be and then goes to work to make it happen. Fortunately, he has the smarts, credibility, and determination to move environmental protections towards real world success.”

Lana Pollack describes Jim as “a visionary who sees the world as it should be and then goes to work to make it happen.”

Mike Dettmer

Mike Dettmer, Jim’s law partner in the 1970s, points out that Jim brought one of the first MEPA cases in Traverse City, representing citizens in an effort to protect the viewshed and access to lands east of the mouth of the Boardman River from development. As a result of the litigation, a portion of that land remains undeveloped today. 

Dettmer calls Jim, “Michigan’s environmental lawyer and guardian from the beginning. My having grown up on the East Side of Detroit, the environment was not the first thing on my mind. He taught me, he taught many judges and the public the importance of environmental protection.”

Mike Dettmer calls Jim, “Michigan’s environmental lawyer and guardian from the beginning.”

Skip Pruss

Skip Pruss, a former chair of FLOW’s board and a longtime environmental litigator for the State of Michigan, says Jim’s accomplishments include not just participating in and winning many important environmental cases or authoring the first treatise on environmental law in Michigan, or that he influenced and inspired two generations of environmental lawyers.  “When I think about his legacy, it is that he always had his eyes on the prize.  He never lost sight of how important it is to understand water–and by extension, the whole hydrological cycle–as a commons belonging to the public, and that this aspect of our jurisprudence is fundamental to a civil society and the common good.”

“Jim has never lost sight of how important it is to understand water–and by extension, the whole hydrological cycle–as a commons belonging to the public,” said Skip Pruss.

Continuing His Tireless Efforts 

Tom Baird

Tom Baird, a longtime leader of Anglers of the Au Sable, calls Jim “a superb environmental litigator: smart, strategic, skilled in the art of trying a case, and possessed of an encyclopedic knowledge of the law. His tireless work promoting the Public Trust Doctrine brought back to life one of the bedrocks of environmental protection. Jim is also a great mentor and friend. I have been honored to know and have worked with him.”

Tom Baird calls Jim “a superb environmental litigator: smart, strategic, skilled in the art of trying a case, and possessed of an encyclopedic knowledge of the law.”

Jim is modest about his work. When he won the State Bar Association’s Champion of Justice Award in 2010, he said it was more an award for his clients of limited means, who have held bake sales and poker tournaments and spent their time raising $1 donations, “to enable me to represent them in a court.”

Jim continues to fight for the commons, shouldering a big share of the work to shut down Line 5 and carrying on numerous other battles. Among many other pursuits, Jim is a skilled writer, authoring not just legal briefs but books, including Michigan Environmental Law (1979), and co-authoring Cross Border Litigation: Environmental Rights in the Great Lakes Ecosystem (1986). He continues to work on a thriller, Waterspout, about a fight for protection of our precious waters.

Jim is a legendary environmental champion, but also a cherished colleague, a devoted husband, father, and grandfather, and the founder of FLOW—a lasting contribution to the commons he has done so much to guard.

Happy Birthday, Jim!

P.S. — 2021 Flashback: The Clean Water Campaign for Michigan Features Jim Olson

In honor of Jim Olson’s birthday and FLOW’s 10th anniversary in 2021, the Clean Water Campaign for Michigan shared this video clip from Seth Bernard’s interview with FLOW founder and senior legal advisor Jim Olson, featured in episodes 11 & 12 of the State of Water podcast. Watch the interview below.

Jim Olson Passes the Torch to Zach Welcker, FLOW’s First Full-Time Legal Director

Photo of Zach Welcker by John Robert Williams Photography

Shortly after Zach Welcker started working at FLOW last summer, he came onto the Monday morning staff meeting by Zoom and wryly summed up his weekend: “Well, I think I had more inches of rain in my basement this weekend than we had rainfall in the entire year back in Spokane.”

Zach had just arrived from drought-stricken eastern Washington after more than a decade as a legal advocate for Indian tribes in the Pacific Northwest on water, fisheries, hydropower, and other natural resource issues. Seeking a return to his Midwest roots and moved by FLOW’s mission to keep water public and protected, he stepped directly into the high waters and heavy downpours of Michigan’s changing climate.

It’s precisely the kind of systemic challenge Zach came to confront head-on as FLOW’s first full-time legal director, responsible for building on FLOW’s legal power, policy acumen, and partnerships—especially among tribes, conservation groups, frontline communities, justice organizations, and scientists—to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all.

“I’m thrilled to be surrounded by all of this water and humbled by the opportunity to keep it public and protected for all,” Zach  Welcker said.

The position’s sweeping range already has immersed Zach in FLOW’s ongoing campaigns to shut down the Line 5 oil pipelines and keep water and water systems in public hands. He also is working with partners on FLOW’s model legislation developed by FLOW’s founder and longtime senior legal advisor Jim Olson that would end household water shutoffs and stop the privatization of the public’s groundwater.

“I’m thrilled to be surrounded by all of this water and humbled by the opportunity to keep it public and protected for all,” Zach said. “I couldn’t have asked for more dedicated and tireless colleagues. Together with our allies, we are going to improve water security for current and future generations by changing the way people think about and interact with water.” 

A Moment Years in the Making

Jim Olson, FLOW Founder and Senior Legal Advisor

Jim Olson, FLOW Founder and Senior Legal Advisor

Zach now carries the public trust legal torch borne since 2011 by Jim Olson, FLOW’s founder and senior legal advisor, who is a water and environmental lawyer renowned for championing the protection of the public waters of the Great Lakes Basin for the common good. For several years, Jim and Executive Director Liz Kirkwood have worked with FLOW’s Board of Directors to develop the strategic vision and case statement for the legal director position, and sought philanthropic partners to invest in the opportunity.

“FLOW’s supporters are terrific ambassadors for our mission,” said Liz Kirkwood, “and we were able to sit down with some of our earliest and most committed advocates to secure multi-year pledges supporting recruitment efforts and funding the launch of our Legal Director position,” said FLOW Executive Director Liz Kirkwood.

FLOW Executive Director Liz Kirkwood

“More than three years ago, FLOW’s staff and executive team worked together on an organizational growth and succession plan,” Liz said. “We knew that we would need increased capacity on our legal team, and we projected that increase into future budget scenarios, on both the expense and revenue side. Once we knew what it would take to turn our plans into reality, we began to reach out for resources.

“FLOW’s supporters are terrific ambassadors for our mission,” Liz continued, “and we were able to sit down with some of our earliest and most committed advocates to secure multi-year pledges supporting recruitment efforts and funding the launch of our Legal Director position. Those pledges allowed us to proceed with a search that ultimately led FLOW to Zach—and Zach to FLOW.

“I hope you’ll join me in welcoming Zach, who brings extraordinary legal expertise and experience clerking at the 9th Circuit and working on tribal, water, and natural resource matters for the Kalispel tribe,” Liz said. 

“Moving to Michigan with his wonderful family is a homecoming of sorts for Zach who grew up in the Midwest in a small town outside of Chicago. He is a wonderful addition to our organization and talented team, sharing great wit, insights, and smarts to our daily work focused on complex systemic water policy and governance issues in the Great Lakes.”

“It is rare that someone like Zach comes along with his extraordinary legal talent and down-to-earth character and listening and problem-solving ability,” said Jim Olson. “When I met Zach and his wife Ellen early last summer, it didn’t take long for me to realize that his spirit and experience would take FLOW’s foundation in water and public interest law and policy into the next decade and beyond.” 

Enhancing our legal team in FLOW’s 10th anniversary year makes the moment all the more sweet as FLOW celebrates successes with partners and supporters and looks ahead to the next decade of safeguarding the Great Lakes, groundwater, and drinking water for all—while addressing climate change and global water scarcity.

“It is rare that someone like Zach comes along with his extraordinary legal talent and down-to-earth character and listening and problem-solving ability,” said Jim Olson. “When I met Zach and his wife Ellen early last summer, it didn’t take long for me to realize that his spirit and experience would take FLOW’s foundation in water and public interest law and policy into the next decade and beyond.

“In the six months since I started mentoring Zach on the many facets of our programs, he’s already made significant contributions to projects like Line 5 and public water justice, public infrastructure financing, and the human right to water and health,” Jim continued. “We’re grateful he and Ellen and their children chose Traverse City and the Great Lakes for their new home.”

Supporting the Olson-Dempsey Fund for Public Trust in the Great Lakes

Dave Dempsey, FLOW Senior Advisor

Jim Olson, FLOW Founder

In an another initiative to keep the legal torch lit, FLOW this summer launched the Olson-Dempsey Fund, which aims to ensure the ongoing impact of Jim Olson’s achievements, as well as those of FLOW Senior Advisor Dave Dempsey, in deepening the influence of the public trust doctrine in environmental policy, especially the protection of freshwater resources.

FLOW and the residents of the Great Lakes Basin are forever indebted to the brilliance, dedication, and relentless efforts of Jim and Dave on behalf of public water, the public trust doctrine, and the well-being of future generations who will call the Great Lakes home.

Learning Lessons from Zach and His Experiences Out West and Back in the Midwest

Zach, who looks forward to a time when he can meet more of FLOW’s allies in person and continue the conversation started here, shares some of his perspective:

How have you and your family’s experiences here so far with water and climate change impacts differed from those you experienced living in the West?

Summer became my least favorite season out West due to the forest fires. Every day was sunny, hot, and dry. There always seemed to be smoke in the air, whether it was blowing up from California, down from Canada, or from a local fire. We had weeks where the air quality was so bad that summer camps shut down, public swimming pools shut down, and even healthy people were advised to stay inside. And this is nothing compared to the western communities that have water scarcity problems on top of all of this! I don’t think it would be accurate to pin all of these fires on climate change, but climate change has certainly exacerbated the problems caused by decades of unsound forest management and land-use practices.

Summer became my least favorite season out West due to the forest fires. Every day was sunny, hot, and dry. There always seemed to be smoke in the air, whether it was blowing up from California, down from Canada, or from a local fire.

Even though there was some smoke in Traverse City when we arrived this summer, our first summer here was a wild dream. It was great to have a mixture of blue skies and the occasional rain storm. I’m told that a couple of our storms here in Michigan were far more powerful than normal. So perhaps Michigan’s analog to forest fires is increased storm intensity.

What are some of the key lessons on water protection that you learned living and working in Montana, Oregon, and Washington State that you bring to your work in Michigan and the Great Lakes Basin?

The regulatory system won’t protect us. It is pollution and consumption enabling, highly manipulable, and captured by the regulated community. That being said, there are many good people working within the system. We need to find those people and empower them with the information and support to make the system work as well as it can. That’s the short game. The long and more interesting game is transforming the system. The public trust doctrine is a great tool in this fight because it can simultaneously influence both games.

As Jim Olson passes the torch to you as FLOW’s first full-time legal director, what does your position at FLOW and this moment mean to you and your personal and professional path?

I’m the trustee of Jim’s vision. That’s a solemn responsibility that should keep me on my toes for quite a while. For now, I’m trying to learn everything I can from him. My basic goal is to keep up Jim’s work in my own way. If I’m able to do that, I will have done good work.

I’m the trustee of Jim’s vision. That’s a solemn responsibility that should keep me on my toes for quite a while.

What are you working on now at FLOW that excites you and holds promise for keeping water public and protected for current and future generations?

I’m just starting to dive into the commodification, financialization, and privatization of water. If there isn’t a vigorous resistance to these efforts, only the rich will have water security. We need to meet the moment.

Introducing the Olson-Dempsey Fund for Public Trust in the Great Lakes

FLOW is welcoming donations here to the newly launched Olson-Dempsey Fund.

A true watershed moment: As FLOW in 2021 marks our first 10 years of groundbreaking work on behalf of public trust rights and responsibilities in the Great Lakes, we honor two of the most ardent champions of public water and most inspiring leaders in the Great Lakes watershed. To ignite FLOW’s next 10 years of forward thinking and momentum, as exemplified by Jim Olson and Dave Dempsey, FLOW and our community of local, regional, and international partners are recognizing, honoring, and ensuring the continuing influence of these two visionary leaders to protect public water in the Great Lakes Basin. 

FLOW Founder & Senior Legal Advisor Jim Olson

For nearly 50 years Jim Olson, FLOW’s founder and senior legal advisor, has been an ardent and effective environmental, water, and public interest law advocate and champion. He has developed a deep knowledge and understanding of public trust principles and law as they apply to the systemic threats facing the Great Lakes Basin. Jim is a graduate of Michigan State College of Law (Detroit College of Law) and has an L.L.M. Degree in public lands, natural resources, and environmental law from the University of Michigan Law School. He received the Champion of Justice Award in 2010, one of the highest honors of the Michigan Bar Association, and was named a Michigan Lawyer of the Year in 1998 for his work on environmental and water citizen suit laws. Jim has lectured in Brazil, Canada, and the United States, and has written numerous articles and essays and three books. He was featured in two eminent documentary films on water, “FLOW: For Love of Water” (2008) and “Blue Gold” (2008).

Watch FLOW’s video homage to Jim Olson below:

FLOW Senior Policy Advisor Dave Dempsey, with long-time friend and colleague Lana Pollack

FLOW senior advisor Dave Dempsey has 40 years’ experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has written dozens of books on the Great Lakes and water protection. Dave has a bachelor’s degree from Western Michigan University and a master’s degree in environmental policy and law from Michigan State University. He has served as an adjunct instructor in environmental policy at both universities.

Watch FLOW’s video homage to Dave Dempsey below:

Central to ensuring the ongoing impact of Jim’s and Dave’s achievements is the establishment of a special fund dedicated to securing the legacy of their leadership and the deepening influence of the public trust doctrine in environmental public policy. Gifts to the Olson-Dempsey Fund will support FLOW’s ongoing mission to educate about the power of public trust law, underscoring the rights and responsibilities of the public and public officials. By underwriting public presentations, communications initiatives, and engagement activities, the Fund will shine a light on the power of the public trust to inform law and science-based policy protecting the Great Lakes and will help to expand and sustain the application of the public trust doctrine as a key legal and policy instrument to protect the waters of the Great Lakes Basin.

FLOW publicly announced the Olson-Dempsey Fund on September 21, 2021, at our 10th anniversary celebration. Donors may add to the Fund through gifts and grants of all levels. Multi-year pledges and structured/planned gifts are welcome. Contact Diane Dupuis at [email protected] with questions about giving, or visit our online donation portal to make a gift now. 

FLOW and the residents of the Great Lakes Basin are forever indebted to the brilliance, dedication, and relentless efforts that Jim Olson and Dave Dempsey have made on behalf of public water, the public trust doctrine, and the well-being of future generations who will call the Great Lakes home.

FLOW Celebrates 10 Years, Honors Jim Olson and Dave Dempsey

Traverse City, Mich.—FLOW is celebrating our 10th anniversary of keeping the Great Lakes public and protected and kickstarting the next 10 years.

Founded in 2011 by Jim Olson and directed since 2012 by Liz Kirkwood, both environmental attorneys, FLOW is a nonprofit law and policy center based in Traverse City dedicated to protecting the Great Lakes, groundwater, and drinking water for all. Independent and nonpartisan, FLOW works with the public and decision-makers to hold the government accountable in protecting and providing access to public waters.

Notable highlights of our 10th anniversary year and celebration include:

  • Tuesday, September 21, from 7:00-8:00 pm EDT—“Confluence”—FLOW’s marquee 10th anniversary event, live-streamed and emceed by dynamic Traverse City talent Ben Whiting. Free and open to the public, the online event will include a special honor for FLOW luminaries Jim Olson and Dave Dempsey, and promises a fun and fast-paced frolic through FLOW’s history and heroes, with special guests, and prize-drawings for Patagonia gear! Register here.
  • The addition of FLOW’s first-ever full-time legal director, an achievement many years in the making. Environmental attorney Zach Welcker joined FLOW in July, after more than a decade representing Indian tribes in the Pacific Northwest on water, fisheries, and other natural resource issues. Zach now carries the legal torch borne since 2011 on a part-time and volunteer basis by Jim Olson.
  • Video reflections by FLOW supporters, staff, and collaborators who have been instrumental to our work and shared successes over the past decade—meant to inspire everyone to join us in protecting freshwater for all. See the video series here.
  • Illustrated timeline of FLOW’s progress through the years in partnership with the public. See FLOW’s 10-year timeline here.
  • Webinars with FLOW staff and partners on Line 5, Great Lakes high water levels, groundwater threats, and artistic efforts to inspire the protection of freshwater. See the collection of recorded webinars here.
  • Release of a penetrating groundwater-protection reportDeep Threats to Our Sixth Great Lake: Spotlighting and Solving Michigan’s Groundwater Emergency—and fact sheet authored by Dave Dempsey and conveyed via webinar. See FLOW’s groundwater program page for more.

Lana Pollack Reflects: “There Isn’t Another FLOW”

“There isn’t another FLOW. There are many worthy environmental organizations but there isn’t another FLOW,” said Lana Pollack, former U.S. Chair of the International Joint Commission. “So I think that FLOW, although it’s not a political organization, it’s a deeply education organization. That has to come first before people will understand and demand of their government representatives protection for their most magnificent home.”

Watch Lana’s testimonial below.

For 10 years, FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW staff, supporters and collaborators are sharing reflections on what our work together has meant to them, and to the freshwaters of the Great Lakes Basin. We hope you will find their words and deeds inspiring. Read more of those reflections here.

“It’s so simple, it’s so basic, and it’s often overlooked. It’s another long-term, generational educational effort that needs total place for people to understand that governments, at any period, at any place, hold the environmental entities of their regions in trust for all generations—not there to be given away, used up, sold, contaminated, forgotten about, taken for granted.”

Editor’s Note: You can enjoy FLOW video reflections by other Great Lakes water protectors here

Founding FLOW Board Member Royce Ragland: Public Trust Combines Policy, Stewardship, Theology and Philosophy

“It was 10 years ago that I first met Jim Olson, and I invited him to be a guest speaker for Green Elk Rapids,” recalls Royce Ragland, the organization’s co-founder and a founding FLOW board member. “He talked about his favorite thing—the public trust. I was just so taken with the idea. It’s an old thought. It combines everything from policy to stewardship to theology to philosophy. I loved it.”

For 10 years FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has mean to them and to the freshwaters of the Great Lakes Basin.

“FLOW gave me an understanding of the importance of policy,” said Ragland. “It gave me an appreciation of the role and the link between policy, which is what FLOW works so mightily on, and the role of everyday life and needing our water, caring about our water. It just merges it all together.

“I chair the planning commission in Elk Rapids, where we seek to raise awareness about environmental ordinances—especially water ordinances. This is the work of everyday citizens trying to alert each other about how we need to take care of these issues, these elements. When friends and neighbors know you’re involved with an organization or a board, it’s an endless opportunity to educate.

“It’s easy to take it for granted. It’s easy to lose an understanding for how policy relates to laws and legislation and advocacy.”

Watch Royce Ragland’s FLOW video testimonial below.

Reality Check: Line 5 Threatens More Jobs Than It Sustains

By Maude Barlow and Jim Olson

Jim Olson

Maude Barlow

Editor’s note: This opinion piece appeared originally in Canada’s National Observer.

The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.

The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of the Straits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.

The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revoke the 68-year-old easement that Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.

The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line 5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge also lacks adequate liability insurance and has steadfastly refused to provide any of the financial assurances that Gov. Whitmer has demanded.

Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelines was failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.

Then, as if fate were sounding a warning alarm, a 12,000-pound anchor from a passing vessel struck and dented the twin pipelines on April 1, 2018. Last summer, Enbridge disclosed two more strikes by anchors or cables. These foreseeable accidents could have opened a gash in the pipeline, exposing 700 hundred miles of the Great Lakes shoreline — potentially including those of Georgian Bay — to a catastrophic spill costing $6 billion in economic damages to tourism, drinking water and other interests. Even worse, such a spill could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs and shrinking the U.S.’s gross domestic product by $45 billion after just 15 days. Michigan will lose tens of thousands of jobs if Line 5 ruptures.

Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line 5 “as good as new” and says it can last “forever,” even though Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigan dumped 1.2 million gallons of heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”

Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection group FLOW. They argue that when Line 5 shuts down, regional domestic energy needs and supplies for refineries will still be able to be met. The estimated increased cost to consumers would be a fraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.

The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line 5 continues operation indefinitely.

The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line 5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.

In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line 5.

____________________________________________________________________________________________________

About the Authors: Maude Barlow is an activist who served as an adviser on water to the United Nations and is Chancellor of Brescia University College. Her latest book is, “Whose Water Is It Anyway? Taking Water Protection Into Public Hands.” Jim Olson is founder and president of FLOW (For Love of Water) in Traverse City, Mich.

FLOW’s 2020 Annual Report

By Liz Kirkwood, Executive Director, and Mike Vickery, Board Chair

Being in, on, or near water brings us into balance, restores clarity, and grounds us in understanding what matters most. Water is life. These elemental connections to water and nature were profoundly important to all of us in the tumultuous year of 2020, as the coronavirus upended our lives and economy.

In reflection, as we recount in our Annual Report released today, November 2020 marked an extraordinary milestone for the Great Lakes—and for FLOW. After seven long years of advancing public trust law as the legal basis to shut down Line 5, FLOW watched Governor Gretchen Whitmer and DNR Director Daniel Eichinger assert public trust law as the cornerstone of the state’s action to advance critical legal action to protect the Great Lakes from a catastrophic oil spill.

Equitable and affordable access to clean drinking water remained at the forefront of our work in 2020 as we partnered with frontline Detroit and Flint groups to successfully persuade Governor Whitmer, and then the legislature, to extend a moratorium on water shutoffs through March 2021. We also partnered to form Water for All of Michigan to evaluate equitable and just financing and funding strategies to assure safe, affordable water for all communities. FLOW’s model legislation, Public Water, Public Justice, is a key part of this work.

FLOW also worked to spotlight and protect the Sixth Great Lake, Michigan’s groundwater, unveiling a groundwater story map in March and a June webinar to highlight the implications of a preliminary state decision approving Nestlé’s permit to increase withdrawals for commercial bottled water. And we chronicled a baffling decision in November by the State of Michigan to dismiss the citizen-led contested case challenging the Nestlé permit.
In a year dominated by a global pandemic, a reckoning with racial injustice, record-high Great Lakes water levels, an unprecedented national election, and profound challenges to our most important institutions, FLOW stood firm as a fair witness to, and advocate for, the power and value of the public trust in moving forward. Working alongside our partners, allies, supporters, and friends, FLOW planted new seeds from which will grow a more just, diverse, inclusive, equitable, prosperous and resilient water future for generations to come.

Your support and passion for the Great Lakes, groundwater, and drinking water for all inspires us and helps drive us forward. Thank you for our shared successes. We hope you enjoy reading about the fresh waters and public trust rights that we have protected together in our Annual Report 2020.

Reflecting on 2020, Looking forward to 2021—FLOW’s 10th Anniversary Year

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

With the New Year upon us, we are taking a moment at FLOW to look back at 2020 and forward to 2021, the start of our 10th year of partnering with you to protect the Great Lakes. This is a really exciting time. FLOW now enjoys a solid foundation built from the work we’ve done to protect the Great Lakes through application of public trust principles, work that cuts through politics and sustains communities with water that is clean, safe, affordable—and public.

Click above to watch a video of FLOW Founder and President Jim Olson narrating his reflections on FLOW’s progress while standing along the shores of Crystal Lake.

I know we slogged through a lot in 2020. We all feel the pain and disruption of the pandemic, the political unrest, climate disaster, poverty, and endemic racism that dominated last year. Families and friends were separated, schools disrupted, and many lives were lost or left with health challenges.

But 2020 also yielded good things, too. After seven years of work by FLOW and our allies, the public trust doctrine became the legal basis for Michigan Governor Gretchen Whitmer to revoke the 1953 easement and eventually bring an end to Line 5 and the transport of crude oil through the Straits of Mackinac. Line 5 is dangerous, and under the public trust law it shouldn’t exist. Gov. Whitmer had no other lawful choice, and she did the right thing.

We also saw the beginning of the end of water shutoffs and the recognition that people are entitled to have access to drinking water. Thank you Governor Whitmer, for taking charge, thank you to Mayor Mike Duggan for suspending water shutoffs in Detroit through 2022, and thank you to the Michigan Legislature for passing the bipartisan bill to continue the statewide moratorium through March 2021.

We’ve also seen progress in our work on Public Water, Public Justice. There’s a real battle on the planet over the question of who owns the water and whether it can be sold and traded on Wall Street, as if it’s iron ore, oil, or coal. Water is a commons, and the public trust protects it for all of us.

Looking to the future of FLOW’s work, this is a time to build on the successes that we’ve had, and to understand, particularly in this last year, that there are individual rights and there is the commons. The common good comes first. Individual rights have no value at all if you don’t have common good and you don’t have the commons, like water, which everyone shares. There’s no wealth to anything short term if this water is destroyed.

We at FLOW are looking forward to celebrating 2021 with you. We’re moving toward an economy buoyed by clean water and clean energy, and we’re going to make it happen together. We’re asking you to continue supporting our work to protect the Great Lakes, groundwater, and drinking water for all. 

Thank you everyone who has supported FLOW since our founding in 2011. Thank you for our shared successes. Your support continues to drive us forward. 

Happy New Year!

Oil & Water Don’t Mix with the Public Trust in the Great Lakes

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action. 

The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.

Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.

Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case

That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person. 

Line 5 passed that threshold many years ago. 

To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.

Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries. 

There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.  

A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.

This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount. 

Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.