Throughout 2020, FLOW has been remembering and reflecting on one of the most consequential years for the environment in America’s history: 1970. The year of the first Earth Day, in which the U.S. Environmental Protection Agency (EPA) was created, Sleeping Bear Dunes National Lakeshore was authorized, the Michigan Environmental Protection Act became law, and much more — made 1970 a year to remember.
As 2020 ends — a consequential year for other reasons – it’s a good time to reflect on what happened 50 years ago, what has transpired since, and where we’re headed on environmental sustainability, public health, and community justice.
The good news is that the nation’s attack on visible air and water pollution since 1970 has made a noticeable difference. Between 1980 and 2019, nitrogen dioxide air pollution in the U.S declined 65%, sulfur dioxide concentrations fell 92%, carbon monoxide levels fell 85%, and airborne lead levels plummeted 98%.
In 1969, both the Cuyahoga River at Cleveland and the Rouge River at Detroit caught fire, symbolizing the nation’s poor stewardship of surface water and leading to public support for a new Clean Water Act. The fraction of monitored water bodies considered unsafe for fishing has declined since then from 30% to 15%. That’s a step forward, but one that leaves considerable room for further improvement. As former EPA Administrator William Ruckelshaus said in 2010, “Even if all of our rivers are not fishable or swimmable, at least they are not flammable.”
But many pollutants remain at unacceptable levels, particularly in urban areas whose residents are at risk from multiple contaminants in air, drinking water, recreational water, and subsistence fish. This environmental injustice was not a major issue on the Earth Day 1970 agenda. Bringing down pollution levels in these areas and achieving environmental justice for all has been a large part of the Earth Day 2020 agenda.
Gaps in our environmental laws have become apparent. For example, loopholes in the Clean Water Act have allowed agricultural pollution and groundwater contamination to fester. The policy agenda must include modernizing such laws.
A 1970 slogan was “Think Globally, Act Locally.” We’ve proven abler at the second than the first. Citizen power has resulted in many community initiatives from recycling programs to land conservation.
But at the same time, problems that we recognize as global have remained challenges or even worsened. For example, domestic U.S. mercury emissions have plummeted since 1970, but we now know thatmercury emitted as far away as Asia can travel on the wind and be deposited in the Great Lakes and inland lakes.
Even more significantly, we have come to recognize greenhouse gas emissions as a threat to the global climate and to humanity. That reckoning should have led to major change in the United States more than 30 years ago, whena prominent scientist warned Congress it was time to act. Reducing greenhouse emissions in one or even scores of countries will not be enough — all must contribute, a difficult feat in a world of diverse peoples and governments. But it must be done. And the United States must lead.
To many alive in 1970, bringing America’s environment back seemed a daunting task. The persistence and courage of millions of citizens forced the government to respond. The lesson for our time is clear. We cannot expect “leaders” in government to take the initiative. Instead, the public must lead them to use their powers for the common good. FLOW’s mission is, and will remain, to help make that happen.
The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.
Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.
The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”
The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.
The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.
It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.
The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.
Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.
The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.
Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.
Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.
The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.
Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.
In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?
Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.
I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.
However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.
The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine
First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature..
Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.
Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.
Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.
Michigan a Forerunner with the MEPA
In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, seeThe MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust. Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm. The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.
If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.
In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:
It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”
Governor Milliken’s official portrait graced the cover of his public memorial service at the Interlochen Center for the Arts on August 6.
By Dave Dempsey
In the flurry of news coverage about last week’s memorial service for the late Governor William Milliken, there was plenty of talk of days gone by.The Governor left office 37 years ago, and it sometimes seems as though moderation, civility and environmental ethics left office with him.
But focusing on that would be the wrong takeaway. The Milliken example is a model for today, not a relic of yesterday.
All five speakers at the service, including Milliken’s longtime advisor Bill Rustem and Governor Gretchen Whitmer, struck the right note—a celebration rather than a sad farewell.
Public consciousness is again growing of the need to stabilize our climate, protect fresh water, and conserve vital habitat.But we cannot wait for another Milliken or Teddy Roosevelt to convert that consciousness into positive change.
Instead, it is time for us to lead—and the political so-called leaders will follow.I think Governor Milliken would approve of renewed citizen activism to meet the challenges of our time.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
Photo: Kolke Creek in the headwaters of the AuSable River was protected by MEPA after the Michigan Supreme Court prohibited discharge of 1 million gallons of oil-field treated wastewater.
Editor’s note: This is part 1 of a series on the history of import of the MEPA.
By Jim Olson
Serendipity can mean chance, destiny, and providence. But serendipity means nothing without the commitment of people, often ordinary people whose hearts were moved to act with complete trust that what they were doing was the right thing.
Such was the case when a group of civic-minded citizens and organizations in April 1969 took a first-of-its-kind, draft environmental law to the political leaders and powerbrokers of Michigan. Their sustained effort resulted, 50 years ago on July 27, 1970, in Governor William Milliken, surrounded by members of the legislature from both sides of the aisle, signing into law the world’s first environmental citizen suit law. The Michigan Environmental Protection Act of 1970, the MEPA, created the legal right of citizens to bring suits in court to protect the environment in which they live. But the cordial, nonpartisan ceremony doesn’t tell the real story.
The 1960s were tumultuous times. It wasn’t just the civil rights movement and the Vietnam War. The jolting assassinations of Martin Luther King Jr., President John Kennedy, and his brother Robert Kennedy shattered the illusion that citizens could simply trust the government as if it was a benevolent parent to protect them. By the late 1960s, people realized that they must care, march, speak out, and participate in government decision-making, to expect government to listen, and to do something if government didn’t.
Rachel Carson’s Silent Spring exposed the poisoning of the environment, the food we eat, and water we drink, from unbridled use of pesticides like DDT. Smog choked our cities, rivers caught on fire, an oil well ruptured off the coast of Santa Barbara. Scientists declared Lake Erie “dead.” In 1965, a federal appeals court recognized that citizens’ with “special recreational and conservational” interests had legal “standing” to petition a court to overturn a permit for a 2,200 mega-watt pump-storage power plant on the Hudson River. Then came the first Earth Day in 1970, an event that largely started on the campus of the University of Michigan and grew into a national and world-wide movement.
Birth of the MEPA in Grand Rapids and Ann Arbor
So, how did the MEPA come about? What would the proposed law created by a young law professor at the University of Michigan Law School do? How could an environmental law address the scientific complexities of pollution in just two or three pages, when the sweeping regulatory environmental permit standards in the Clean Air Act of 1970 ran 147 pages? [42 U.S.C., Sections 7401-7671]
In 1968, a group of citizens living in Grand Rapids formed the West Michigan Environmental Council—WMEAC—the state’s first broad-based organization of citizens and civic organizations to take action to protect West Michigan’s environment. [Joan Wolfe, A “History of the Michigan Environmental Protection Act” (author’s personal account, circa 1972)] Not long after, led by its founder Joan Wolfe with the help of her husband Will and Grand Rapids lawyers Peter Steketee and Hillary Snell, the group filed a suit in federal district court to stop the use of DDT by the U.S. Department of Agriculture. The court, however, threw out the suit because the federal law did not grant them a right to sue to contest the agency’s use of pesticides. All they could do was write letters to persuade the government not to do it.
Professor Joe Sax (1936-2014)
Undeterred, Wolfe and WMEAC contacted a law professor Joe Sax, who had recently joined the faculty at the U of M Law School, to see if a law could be written to fix the lack of the legal right to sue to prevent the degradation of the state’s air, water, and natural resources. By early 1969, Sax drafted a proposed law, which five years later after Michigan’s Supreme Court upheld its constitutionality, he would call an “Environmental Bill of Rights.”[“Michigan Upholds and Ecology Law that Let’s Citizens Halt Harmful Projects,” The New York Times, Archives, Jan. 26, 1975.] The model law stated that “any person could bring an action in court to protect the air, water, and natural resources or the public trust therein” from “likely pollution, impairment, or destruction.”
The model law stated that “any person could bring an action in court to protect the air, water, and natural resources or the public trust therein” from “likely pollution, impairment, or destruction.”
WMEAC convened a vast coalition of community and business leaders, conservation leaders, law students, journalists, and many civic organizations—UAW, AFL-CIO, Michigan United Conservation Clubs, League of Women Voters, National Audubon, the Black Unity Council, the PTA—and showed the draft law to a long-time sportsman, an articulate and highly respected member of the state House of Representatives, Tom Anderson. [Dave Dempsey, Ruin and Recovery: Michigan’s Rise as a Conservation Leader, Chpt. 11, pp. 162-177 (University of Michigan Press, 2004); “Give Earth a Chance,” note 1, supra.] Known as the “gentle giant” because of his reflective manner and his 6-foot, 6-inch frame, [“Thomas Jefferson Anderson-Environmentalist,” Meandering Michigan History] Anderson and his natural resources committee met with Sax, and commenced artful discussions with representatives from both political parties. [Id., Dave Dempsey, at p. 176-177] On April 1, 1969, buoyed by the surging support of so many individuals and organizations, Anderson and sponsor Warren Goemaere introduced the “Sax” bill as House Bill 3055.
The bill’s central feature, a citizen suit to remove complex obstacles of administrative law, [James Olson, Michigan Environmental Law, Chpt. 9, p. 185 (Neahtawanta Press, 1981)] posed a dramatic change at the time. The model law aimed at the “disillusionment” that administrative agencies were “too closely associated with the interests of industry.” [The Michigan Environmental Protection Act of 1970, 4 U. Mich. J.L. Reform, 121 (1970-1971)] As later described by the state’s highest court, “Not every public agency proved to be diligent and dedicated defenders of the environment. The [MEPA] has provided a sizable share of the initiative for environmental law enforcement for that segment of society most directly affected—the public.” [Ray v Mason County Drain Comm’r, 393 Mich 294, 305 (1975)]
In Lansing, Havoc in the House Hearings
The tide of euphoria surrounding H.B. 3055 soon ebbed. Not to be overtaken by a law that would destroy decades of close ties with their regulators, industry and commercial interests mobilized. Industry claimed citizens would file lawsuits that would harass lawful enterprise and stop progress in its tracks; Ford Motor remained concerned that it would make business difficult. [Joan Wolfe, note 3, supra, p. 5] Attorney General Frank Kelley, Governor Milliken’s legal advisor, and the Department of Natural Resources, even Governor Milliken himself, were skeptical at best. At first, the Michigan Chamber of Commerce at first remained circumspect. During the winter and spring of 1970, Anderson’s committee and Senator Gordon Rockwell’s environment committee scheduled hearings. The Wolfe coalition of civic organizations and individuals from all over the state took on a life of its own. Hundreds of citizens packed the committee rooms.
The Chamber was joined by manufacturing and agricultural interests, and struck with full force. The Chamber coalition offered amendments to sink the bill—a provision that would limit suits to “unreasonable” pollution and impairment. [James Olson, note 9, supra, pp. 192-193. In drafting the original bill, Joe Sax was not doubtful of the foresight in Art. 4, Sec. 52 of the 1963 Constitution that mandated the legislature (“shall”) to protect the air, water, and natural resources of the state from pollution, impairment, or destruction, without a qualifying adjective like “unreasonable.”] Another provision would remove the word “public trust,” weakening the duty of the state to protect its lakes, streams, and valuable public lands.
Debate and citizen outcry at times rose to near maelstroms. But Governor Milliken and other leaders took charge, adamantly supporting the original bill. Frank Kelley withdrew his initial skepticism, and Director Ralph MacMullan and the DNR became strong proponents. When the committee passed and sent H.B. 3055 to the House floor for a vote, more heated debate ensued. On April 21, 1970, the House struck “unreasonable” and the other damaging amendments, and the bill passed almost in its original form. [Dempsey, note 6, supra, p. 174-175; Olson, note 9, supra] Now it was the Senate’s turn.
Emerging Ultimately Unscathed in the Senate
The plight of H.B. 3055 was no less dramatic in the Senate. Tom Washington, the powerful, brash head of Michigan United Conservation Clubs, warned the Senate could be the bill’s downfall. [Wolfe, note 3, supra] The Chamber renewed its demand to weaken the MEPA by reinserting the word “unreasonable” in front of pollution. Farm Bureau called for a penalty of twice the costs and attorney fees if citizens lost their lawsuit; the Manufacturers introduced a change that would remove the feasible and prudent alternative test. [Id.; Wolfe, note 3, supra] Senator Rockwell, the chair of the Senate Environment Committee, a critical Republican ally to the bill’s passage, called for patience. After a newspaper editorial chastised him for not scheduling a hearing, he scheduled a hearing on one week’s notice. Wolfe, WMEAC, UAW, Rep. Anderson, Sax, students from Michigan’s Environmental Law Society, and hundreds of others shifted into high gear and packed the hearing to block the renewed efforts to cripple the bill. Governor Milliken continued to speak up and urge passage of the bill. Weeks passed, and there was silence, so Wolfe once more rallied the troops of citizens, organizations, and leaders, calling on senators to take up the bill or suffer the consequences in their primary election. On the last day before recess, the Senate took up the bill, and it passed unscathed.
Key Provisions of the MEPA
The MEPA is terse compared to other laws. [Act 451, Public Acts of 1994, Part 17, Natural Resources and Environmental Protection Act, MCL 324.1701-1706] The opening section simply states that “any person may maintain an action” in court “for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.” [Section 1701(1), MCL 324.1701(1)] The dramatic contrast between the MEPA and long, complex regulations that govern the approval of permits proves the difference. Unlike laws and permitting regulations managed by agencies tasked with narrow, specific technical standards to limit toxic and hazardous substances, harmful discharges, and control or manage toxic wastes, the MEPA took a different tack.
Not only does it grant citizens the right to bring a civil lawsuit, the MEPA charges courts with the responsibility to find the facts and rule in each case whether there is likely pollution based on the underlying factual proofs and science in open court and subject to the truth-searching light of cross examination. [Section 1703(1), MCL 324.1703(1)] In short, the MEPA levels the playing field. All persons or parties to a dispute share equal access and responsibility for addressing or disputing the alleged harm. If a citizen (plaintiff) who files a suit establishes that conduct “has or is likely to pollute, impair, or destroy” the environment, the conduct is prohibited unless the defendant proves that here is “no feasible and prudent alternative” and the conduct is consistent with health, safety, and welfare and an overarching concern for the natural resources or public trust involved. In addition to citizen suits, persons may intervene in an agency permit proceeding and participate as a party to oppose or present evidence that shows the applicant’s proposed conduct or development is likely to cause harm the environment. And, if the harm is shown to likely occur, the agency cannot approve the permit unless it can determine that the applicant has no alternative consistent with the state’s paramount concern for its natural resources. [Section 1705, MCL 324.1705]
In short, the MEPA levels the playing field. All persons or parties to a dispute share equal access and responsibility for addressing or disputing the alleged harm.
But the MEPA does more. It authorized the courts in day-to-day decisions in the cases before them to develop, collectively, what has been called “the common law of the environment.” Each case becomes another benchmark to guide persons, industry, developers, businesses, and governments in deciding what is and what is not permissible conduct affecting the environment. While the MEPA does not cover every minor human action, those actions that exceed the threshold of “likely pollution, impairment, or destruction” do violate the law. This standard has become the lifeblood of Michigan’s environmental principles and ethos. If a court finds the threshold has been violated, the conduct is prohibited unless a defendant proves there is no feasible and prudent alternative that is consistent with the state’s paramount concern to protect its natural resources.
A Message from Joan Wolfe on the MEPA’s Key Lesson
The MEPA was born out of a deep mutual desire by often competing stakeholders to do the right thing. Today, all of us in Michigan should take time to reflect on the lessons learned, the injustices prevented or eliminated, and the principles that have evolved into our common law and ethos to protect the environment. As Joan Wolfe, the mother of MEPA, has wisely passed on to all of us, present and future generations:
“Two ingredients may not be obvious. One is the importance of a coalition agreeing on one priority at a time, and the other is to persist — persist until the ink is dry.
But the lesson I want most to emphasize is the need for the leader/coordinator to reach out and actively encourage a diverse spectrum of individuals and groups to adopt the issue as their own and take some initiative, so that information and work are shared and grow at an exponential pace, and imaginative ideas and help that can make a pivotal difference are more likely to happen.
Think of the woman who went to Lansing just to help swell the crowd, and ended up persuading Peter Kok to vote for a crucial amendment that passed by ONE vote. Think of the creative idea and initiative by two Earth Day leaders that, when publicized at a pivotal point, defused a powerful report from the Attorney General’s office. Think of the parts so many individuals played.
In summary, I go back to the quotes that preceded this account: To me the greatest lesson is: “None of us is as smart as all of us,” and “Nothing we do can be accomplished alone.”[Joan Wolfe, note 3, supra]
This lesson is as true today as it was in 1970. In 2020, we are empowered, and we hold the present right and responsibility to solve the continuing systemic, devastating effects to our air, water, and natural resources in the 21st century. At any time, we have the choice to rise above our political or ideological differences and unite through relentless, tireless, day-to-day work and forward-looking vision to face the complexities and uncertainties in our lives and those of our children and grandchildren.
“But the lesson I want most to emphasize is the need for the leader/coordinator to reach out and actively encourage a diverse spectrum of individuals and groups to adopt the issue as their own and take some initiative, so that information and work are shared and grow at an exponential pace, and imaginative ideas and help that can make a pivotal difference are more likely to happen.” — Joan Wolfe
Editor’s note: Still to come is Part 2 of the series – The MEPA’s Growing Pains
To celebrate the 50th anniversary of the MEPA, the next installment of this series will look at the challenges and growing pains of a new law that has matured into a pillar of Michigan’s and the nation’s environmental laws. Five more states passed their own citizen suit laws patterned after the MEPA, and Congress incorporated citizen suit provisions in the Clean Air Act and the Clean Water Act.
Within three years after MEPA took effect, as many as 50 citizen suits had been filed across the country, 33 of them in Michigan, and 26 succeeded [Joseph Sax and Roger Connor, Michigan’s Environmental Protection Act: Progress Report, 70 Mich L. Rev 1003 (1972); Joseph Sax and Joseph DiMento, Environmental Citizen Suits: Three Years’ Experience under the Michigan Environmental Protection Act, (Env. L. Quarterly, 1974)] in the six states that had enacted citizen suit laws. Since then, citizen suit provisions have been included in numerous federal laws, and formed the legal framework for state consumer protection laws.
The broad-based provision that authorized courts to prohibit conduct that would pollute the air, water, and natural resources, and the incorporation of the public trust doctrine to protect those resources, would come to influence environmental law and policy around the world. It is not without significance that, in 2007, the MEPA and its author Professor Joe Sax won the Blue Planet Prize, the Nobel prize for the environment.
With the approach of the August 6, 2020, memorial service for beloved former Michigan Governor William G. Milliken, FLOW is honored to announce the creation of the Helen and William G. Milliken Fund For Love of Water to extend the former First Family of Michigan’s legacy of equity and environmental protection.
The Milliken Fund is designed to support work that protects the Great Lakes and the public trust rights of those who depend on them, inspires community action advancing environmental stewardship, and sustains internships at FLOW—which is based in Governor Milliken’s hometown of Traverse City—to foster a new generation of environmental leaders. (Click here to read about this summer’s inaugural FLOW Milliken Fund Interns, Zoe Gum and Emma Moulton).
Established at FLOW by a bequest from the Milliken family, the Milliken Fund is welcoming donations from members of the public interested in investing in and extending Helen and Governor Milliken’s legacy of protecting the environment and especially the Great Lakes, advancing social equity, and promoting civility and bipartisanship.
“Organizations like FLOW have built themselves around the same policies that both of my parents advocated,” said Bill Milliken, Jr., a prominent Ann Arbor commercial realtor, who carries on the family tradition of public service in multiple roles, including as a board member of the Mackinac Bridge Authority, Washtenaw Community College, New Detroit, and the Groundwork Center. “Supporting FLOW helps make their legacy more visible.”
The longest-serving governor in Michigan’s history whose public service reached back to World War II, William G. Milliken passed away October 18, 2019, in Traverse City at age 97. He served as governor of Michigan from 1969 to 1983. He was preceded in death by the passing in late 2012 of his wife Helen, who also earned a reputation for environmental stewardship, elevation of women’s rights, advocacy for the arts, and an abiding decency toward others.
The memorial service and celebration of Governor Milliken’s life will take place at 2:00 p.m. EDT on Thursday, August 6, at the 4,000-seat, open-air Kresge Auditorium at the Interlochen Center for the Arts, where he served on the Board of Trustees from 1983-1997. The gathering is free and open to the public.
Speakers at the August 6 event include Michigan Governor Gretchen Whitmer; Bill Rustem, a senior policy advisor in both the Milliken and Snyder administrations; Capt. Arlan Brower, retired from the Michigan State Police; Chuck Stokes of WXYZ-TV; and journalist and longtime friend Jack Lessenberry. Those attending are encouraged to arrive early and be seated to help accommodate Governor Whitmer’s schedule. The memorial also will be broadcast live on IPR News Radio. Listen online or with a mobile device or on the radio to WICA-FM 91.5 Traverse City, WHBP-FM 90.1 Harbor Springs, or WLMN-FM 89.7 Manistee.
“It’s an honor for FLOW to be associated with Governor Milliken’s life and legacy, including his many environmental accomplishments,” said Liz Kirkwood, executive director of FLOW. “The Governor and his wife Helen did so much for our air, land, water, fish, and wildlife, and their efforts continue to benefit Michigan and all who live and visit here. We pledge to extend those efforts and engage the public, communities, and emerging environmental leaders in the shared effort.”
“We are deeply grateful to the Milliken family for their selecting FLOW to carry on the good works of Bill and Helen Milliken,” said FLOW founder and legal advisor Jim Olson, a Traverse City native and friend of Governor Milliken and his family. “We are inspired by their leadership that elevated the State of Michigan to be a national leader in the strength and scope of its environmental laws and policies, many of them directly addressing Great Lakes water diversion and water quality issues.”
The Governor’s environmental accomplishments include:
Expanding state funding of recreation and parks programs to include urban areas like Detroit;
Controls on phosphorus pollution from detergent soaps, which led to dramatic reductions in algae blooms; and
The signing of laws to protect sand dunes, control hazardous waste, promote recycling, and create what is now the Natural Resources Trust Fund, which has provided more than $1 billion to purchase and steward recreational and environmentally significant land.
FLOW senior policy advisor Dave Dempsey, an author of several books on the Great Lakes and Michigan’s environment, wrote in his 2006 biography, William G. Milliken: Michigan’s Passionate Moderate, “Governor Milliken is Michigan’s gold standard for environmental stewardship, civility in public life and a concern for all the citizens of Michigan. It was a profound pleasure to get to know the Millikens in the course of writing the biography.”
Before becoming Governor, William G. Milliken served in the state senate and as the state’s lieutenant governor. He also was president of the former Milliken’s department stores. He flew 50 combat missions in Europe during World War II, surviving two crash landings and receiving seven military honors, including the Purple Heart and Air Medal.
August 6 — 2:00 pm EDT — Memorial Service for Governor William G. Milliken at Interlochen Center for the Arts
The memorial service and celebration of Governor Milliken’s life will take place at 2:00 p.m. EDT on Thursday, August 6, at the 4,000-seat, open-air Kresge Auditorium at the Interlochen Center for the Arts, where he served on the Board of Trustees from 1983-1997. The gathering is free and open to the public. Speakers at the August 6 event include Michigan Governor Gretchen Whitmer; Bill Rustem, a senior policy advisor in both the Milliken and Snyder administrations; Capt. Arlan Brower, retired from the Michigan State Police; Chuck Stokes of WXYZ-TV; and journalist and longtime friend Jack Lessenberry. Those attending are encouraged to arrive early and be seated to help accommodate Governor Whitmer’s schedule.
Attendees are asked to register for the memorial service so that capacity can be monitored in an effort to plan for social distancing and other health and safety considerations. Please visit Eventbrite to register. Capacity will be limited and registration does not confirm a reservation. Attendees are asked to plan to honor public health safety measures including face coverings and adhering to physical distancing.
The memorial will be broadcast live on IPR News Radio. Listen online or with a mobile device or on the radio to WICA-FM 91.5 Traverse City, WHBP-FM 90.1 Harbor Springs, or WLMN-FM 89.7 Manistee and other NPR affiliates in Michigan.
WTVS Detroit Public Television will offer a livestream of the event at www.dptv.org.
Photo: Students and faculty at the University of Michigan organized an environmental teach-in attended by 50,000 people in March 1970. It led to the first Earth Day on April 22, 1970.
By Dave Dempsey
Although American environmentalism reaches back to the early 20th century, public demands for clean water, clean air, and healthy ecosystems reached a crescendo in 1970. As 2020 dawns, FLOW believes it’s time to remember and reflect on all that happened that 50 years ago—and how we can make the next 50 years a time of further dramatic progress for our precious waters and the environment.
At the five-day teach-in, in which an estimated 50,000 people participated, Victor Yannacone, a nationally recognized environmental attorney, spoke on use of the courts to halt pollution. He told students, “This land is your land. It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation. It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Gaylord Nelson of Wisconsin and Edward Muskie of Maine.
The national observance of Earth Day followed on April 22.
Earth Day 1970, however, was just one of many events and accomplishments—and a few crises—both nationally and in Michigan. During 2020, FLOW will note these and other milestones from 50 years ago:
December 31, 1970:The Michigan Great Lakes Shorelands Act was signed into law by Governor Milliken.
The first milestone, the National Environmental Policy Act (NEPA), was co-authored by the late Congressman John Dingell of Michigan. As its title suggests, the law established a federal policy on the environment, created a federal Council on Environmental Quality, and required environmental impact statements on proposed major federal activities affecting the environment.
President Richard Nixon, who signed the legislation, said, “I have become convinced that the 1970s absolutely must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters and its living environment.”
In 1970, there was a broad bipartisan consensus that the United States and Michigan needed to do a much better job of protecting our environment. It’s a lesson from which we can learn today.
Share Your Environmental Recollections from 1970
FLOW is looking for contributions from you for this 50th anniversary year of Earth Day and related milestones. Here’s how you can help:
Suggest additional local, state, or national milestones from 1970.
Provide short guest commentaries (500 words) with your views on the significance of 1970, what’s happened since then environmentally, and where you hope we stand 50 years from now.
Provide your historical photos of significant environmental events from 1970.
Michigan has many magnificent natural features, but none is quite like Hartwick Pines. A small remnant of the great white pine forest that spanned millions of acres of Michigan before the European arrival, the 49 acres at the heart of Hartwick Pines contain trees as tall as 160 feet and as old as 400 years. When, in 1992, a storm mortally wounded the tallest and largest of the primeval trees, known as the Monarch, it generated news headlines.
Another great tree has fallen. On Friday, October 18, former Governor William G. Milliken passed away at age 97 in Traverse City. The longest-serving governor in the history of Michigan, Milliken distinguished himself in numerous other ways, several of which seem especially important today.
Former Vermont Governor Richard Snelling in 1982 suggested that Milliken “will surely be recorded in history as one of the nation’s great governors.” The day after Milliken’s passing, the Traverse City Record-Eagle wrote in an editorial that, “We cherish our governor … for his most precious quality: his innate ability to set aside party, politics and partisanship for the good of all Michiganders”.
Perhaps the Governor’s most lasting policy legacy is the framework of environmental laws that came into being during his 14 years in office, from 1969 to 1982. It was a case of the right person at the right time. As public consciousness of a century of environmental neglect and abuse peaked, and a clamor for a new approach grew to a crescendo, Governor Milliken took the initiative to propose or support, and ultimately sign into law the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, the Wetland Protection Act, the Wilderness and Natural Areas Act, the Sand Dune Management and Protection Act, and many more. When the Legislature deadlocked on a proposed recycling deposit on beer and soda containers, he helped lead a citizen initiative to put the proposed law on the ballot. Voters approved it by a two-to-one margin in 1976.
Even in the 1970s, the decade of the first Earth Day, it wasn’t always politically easy to push for a cleaner environment. When scientists identified phosphorus laundry soaps as a major contributor to the algae blooms in western Lake Erie and elsewhere, the proposed remedy was a strict limitation on phosphorus content. Major Republican contributors strongly opposed the change, but Milliken defied them and took aggressive action to bring it into effect. Within only several years phosphorus discharges from wastewater treatment plants plummeted and Lake Erie began to recover.
Another important part of the Milliken record was his concern for the state’s great cities, including Detroit, which was deeply distressed during the 1970s. Working with Democratic Mayor Coleman Young, he invested state and federal resources in the city and won political support unusual for a Republican in the city. Today Milliken’s name crowns Michigan’s first urban state park on the Detroit waterfront.
Milliken’s regard for Michigan’s environment began early. His Traverse City upbringing (and a cottage in nearby Acme) acquainted him with woods and waters. Among his earliest memories were outdoor outings and swimming in Grand Traverse Bay. Deeply rooted in his home community, he frequently returned on weekends to his house on the bay while governor, finding peace and renewal.
But the Governor’s environmental record and values are not his only legacy. His style of governance—shunning the extremes, looking for solutions on which diverse interests could compromise for the public good—was the ultimate trademark of his service. In a time of divided government, when Democrats largely controlled the Legislature, he was able to enact his program through negotiation and cooperation.
Governor Milliken did not demonize his opponents. Public name-calling was foreign to him. And his civility worked. He remained in office longer than any other governor of Michigan in part because voters trusted him to do the right thing.
In researching and writing Governor Milliken’s biography, William G. Milliken: Michigan’s Passionate Moderate, I was honored to spend many hours with him and his wife Helen Milliken, a major historical figure in her own right. They were in person as they were in public—unfailingly gracious, kind, and reflective. There was nothing false or inauthentic about them.
In our time together, both Millikens spoke repeatedly of their appreciation of Michigan’s beauty and the need to continue fighting to protect it. It should not be forgotten that it was Helen Milliken who alerted her husband to the controversy over oil development in the wilds of the Pigeon River Country State Forest, and urged him to take a stand in favor of the forest’s conservation. She was a major influence on his environmental policies.
After he left office, he famously summarized his environmental values: “In Michigan,” he said, “our soul is not to be found in steel and concrete, or sprawling new housing developments or strip malls. Rather, it is found in the soft petals of a trillium, the gentle whisper of a headwater stream, the vista of a Great Lakes shoreline, and the wonder in children’s eyes upon seeing their first bald eagle. It is that soul that we must preserve.”
A part of Michigan’s soul passed from the scene last week, but thanks to Governor Milliken’s work, our soul will renew itself for generations to come.
A memorial service for Governor Milliken will be held in May 2020. The Milliken family has asked that, in lieu of flowers, donations in his memory and in support of his environmental legacy be made to FLOW and the Detroit Riverfront Conservancy.
If Michigan has ever had an environmental governor, it was William G. Milliken, Traverse City’s son, who turns 95 on March 26.
The woods and waters of the Traverse City area, Milliken said, and particularly summer days at a family cottage near Acme, bonded him to nature in his childhood. That embedded appreciation carried forward into his political career.
When Milliken became governor in January 1969, the public was clamoring for environmental action. He delivered.
In a January 1970 special message to the Legislature, he said, “The preservation of our environment is the critical issue of the Seventies.” The message contained a 20-point program, including proposals that ultimately became a shorelands protection act and a natural rivers conservation law.
An even bigger achievement that year was the passage, with Milliken’s support, of the Michigan Environmental Protection Act, or MEPA. Granting any citizen standing to sue for the protection of natural resources and the public trust in these resources from pollution, impairment, or destruction, the law had national significance and was imitated in many states.
In 1976, he defied Amway Corp. co-founder and major Republican Party donor Jay Van Andel by backing a tough limit on phosphorus in laundry detergent, a product manufactured by the company. Reduction of the nutrient almost immediately shrank algal blooms in Michigan waters.
The same year, the legislature deadlocked on a proposal to attach a deposit to some beverage containers. Convinced the law would reduce litter and promote recycling, Milliken joined forces with the Michigan United Conservation Clubs to put the proposed container deposit law on the 1976 ballot. Voters approved the law by a roughly 2-to-1 margin. It is still considered the most successful law of its kind in the nation.
Milliken signed over a dozen major environmental bills into law, many of them evolving from his proposals: wetlands conservation, hazardous waste management, inland lakes and streams protection, and what is now the state Natural Resources Trust Fund, a public land acquisition and protection program capitalized by proceeds from oil and gas drilling on state lands. He left office on January 1, 1983 after almost 14 years in office, the longest tenure of any Michigan governor.
In 2011, Milliken said Michigan citizens must think of water “as something sacred, not to be treated as a commodity for barter and trade. If we Michiganders observe this principle in public policy and private actions, there will be no limit to the prosperity of our state. Water will then continue to define Michigan, enrich us in ways that include but reach far beyond dollar values, and be our legacy to generations to come. It is no wonder that our Supreme Court once declared that our streams, lakes, and Great Lakes are held in a ‘high, solemn and perpetual trust.’”