By Dan Sanderson, Staff Writer – Crawford County Avalanche
April 30, 2014
Grayling Charter Township is hosting an informational presentation regarding Horizontal Hydraulic Fracturing, more commonly known as fracking for oil and gas, for area citizens.
A organization called FLOW, For Love of Water, will make a presentation called Horizontal Fracking for Oil & Gas in Michigan: Legal Strategies & Tools for Local Communities. The presentation will be held at 6:30 p.m. on Tuesday, May 13 at the Grayling Charter Township Hall.
“We as township officials are educating ourselves and researching possible zoning and ordinances that could be adopted to help regulate ancillary activity associated with oil and gas exploration and production in our area,” said Grayling Charter Township Supervisor Rick Harland. “This will be a great opportunity to get a good overview of what goes on and a chance to ask questions.”
Hydraulic fracturing involves drilling into geologic formation ranges between 5,000 to 10,000 feet deep, compared to more common oil and gas well that are 600 to 2,000 feet deep. High volume hydraulic fracturing involves the use of more than 100,000 gallons or water. In addition, materials such as sand and chemicals are used to prop open the artificially created or enhanced fractures to extract the oil and gas from the deeper formations.
FLOW is a Great Lakes water policy and education center, dedicated to advancing public polices to protect the Great Lakes for current and future generations.
According to FLOW, the natural gas and oil industry is largely exempt from key federal environmental laws including the Safe Drinking Water Act and Clean Water Act.
“We all need gas and oil to continue a life style we have become accustom to,” Harland said. “Having said that, it is equally important to protect and preserve our precious rivers, lakes and other sources of fresh water. We believe that we can protect our valuable resources at the same time explore for oil and gas, through regulation and cooperation.”Therefore, states are primarily responsible for regulating activities.
Rick Henderson, field operations section supervisor for the Michigan Department of Environmental Quality (DEQ) Office of Oil, Gas and Minerals, said the state updated its regulations to address hydraulic fracturing for oil and gas exploration, development and production in 2011. More rules were proposed in late 2013 and are currently under consideration.
Henderson said that hydraulic fracturing was first used for oil and gas exploration in the State of Michigan in 1952. Throughout the 1980s and 1990s, Henderson added that 12,000 wells were drilled using hydraulic fracturing in the Otsego County-region. Those wells were shallower and did not involve a high volume of water usage, but had no negative impact on the environment or public health and safety.
“It’s our goal to protect the resources of the state and public’s health and safety – that’s our number one goal and focus,” Henderson said.
FLOW educates township officials on ordinances they can adopt to regulate related oil and gas activities such as natural gas pipelines, flow lines, gathering lines, treatment or production facilities, compressors and water and chemical mixing stations. In addition, townships can adopt ordinances regulating emission releases, high truck traffic and transportation issues, land impact, odors, noise, the handling reuse and disposal of wastewater and hazardous solid materials or liquids.
Harland encouraged residents from throughout the area to attend the meeting.
“Of all the concepts known to America law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive approach to resource management problems.” – Joe Sax, The Public Trust Doctrine, 66 Mich. L. Rev. 473, 474 (1970).
“Any person… may maintain an action in the circuit for the protection of the air, water, natural resources and the public trust therein from pollution, impairment, or destruction.” – Joe Sax, Codified as TheMichigan Environmental Protection Act of 1970.
“To those for whom wilderness values… has never been of more than peripheral importance, this book asks principally for tolerance…”… to the preservationists themselves, in whose ranks I include myself, the message is that the [public] parks are not self-justifying. Your vision is not necessarily one that will commend itself to the majority. It rests on a set of moral and aesthetic attitudes whose force is not strengthened either by contemptuous disdain … or taking refuge in claims of ecological necessity. Tolerance is required on all sides, along with a certain modesty.” – Joe Sax, Mountains Without Handrails, pp. 108-109(University of Michigan Press, 1980).
Professor Joe Sax (1936-2014)
Joe Sax, father of environmental law citizen suits and the public trust doctrine and Michigan and California professor, passed away last week, leaving a legacy far beyond his 78 years. His wife Ellie Gettes Sax passed away this past December. His sense of justice, family, art, knowledge, wisdom, masterful writing, and passion will be sorely missed by his family, friends, colleagues, and the many students and fans who have had him in class or read his law review articles, essays and books.
But thank you to Joe for the legacy he left—writings that are so sound in research and reason and so visionary in real world application. Like the public trust doctrine from ancient times that he resurrected in the famous 1970 Michigan Law Review, parts of which are quoted above, his body of work will undoubtedly continue to teach students and lawyers how to protect water and the planet for generations to come.
My thoughts go to Joe Sax, his family, and colleagues, and the thousands of law students, lawyers and judges who admire or have been inspired (or jolted) by his work. He will be sorely missed by his family and friends close to him and those who knew him. Fortunately, the beacon of his work burns brightly, as it has done and will do.
I remember the first time I met him as Professor Sax when he spoke at the Michigan State University Union in 1972. I actually didn’t “meet” him that day, but heard him talk to the assembled group about a law (the Michigan Environmental Protection Act) that he had drafted and was signed into law by Governor Bill Milliken.
He spoke mostly about the idea behind it: that the water, watershed, and people who live or work there are all connected as a single natural system, and are collectively protected by this new law and by the public trust. How? Through rights, responsibility, and access (what lawyers refer to as “standing”) to courts to enforce these rights and duties and protect this natural system and trust from harm.
As a recent law graduate then working at the Michigan Supreme Court, I had seen a notice of his lecture posted on the Union bulletin board and wanted to know what it was about. I left the Union that day with one thing on my mind (like so many others, I’m sure): this was I wanted to do as a lawyer.
Little did I know that I’d be so fortunate, and Joe Sax so kind, to study under his personal supervision when I attended Michigan for my Masters in law. That he took me on was a huge gift, one I’ve wanted to return, like so many of us who have been inspired by him, in the day-to-day work that we do by applying and implementing the very values and principles he strived for and espoused so eloquently.
I treasure his trip to Traverse City a few years ago to deliver a keynote on water. I picked him on at the airport and he generously agreed to meet for dinner with Joan and Will Wolfe—friends of his and the citizen duo behind passage of the environmental citizen suit law in Michigan—and all of the lawyers, mostly young, at our firm. Even today they still talk about that evening.
Then there was his keynote address at the State Bar of Michigan Environmental Law Section’s 25th anniversary a few years back, when Joe traveled to East Lansing for another lecture. This time the focus was on accepting the reality of climate change and, as lawyers, beginning to envision pragmatic ways to prepare for the rising oceans and disappearance of habitat in flooded estuaries, wetlands and lowlands.
He wondered aloud how we as lawyers might start thinking about setting aside land use zones now for the new wetlands and sensitive habitats or spawning grounds that will be needed in the future as water levels rise along the shores of the oceans? Or, how should we as a society start to address the dropping water levels of the Great Lakes, preparing for the need of new wetlands in exposed lake or river beds? Figuring out who will own these new exposed lakebeds if they become permanently dry upland property? Will these be considered private riparian or public trust lands or both?
I think about friends who had him as a professor or mentor, at Michigan and later at Berkeley, and can only imagine the stories they have, I’m sure quite similar to my own. Joe Sax wrote and taught eloquently—an artist within the linear framework of law-but he was also a tremendous influence and affected many, many people, in so many good ways.
He left a legacy of accomplishments, although that is not the way he would view them, given his respect, and I think love, for soundly researched, firmly reasoned, and artfully structured and worded writings on law, justice, the arts and culture. Rather, he left a legacy of contributions, giant contributions. While not close to a list of his body of work, at the end of this post is a list of a few works that cannot go unmentioned.
So many other organizations, leaders, professors, and friends of Professor Sax could say or tell far more than I ever could. But we at FLOW are deeply grateful for Joe Sax and his life, and in mission we hope to fulfill in some pragmatic measured ways what he envisioned.
For in what is still the early morning of the 21st century, the world faces seemingly insurmountable threats, some that point toward global collapse if we continue on the selfish and material path that we now live as civilizations and economies. We have a choice between living in a world of top-heavy wealth of a few that pushes people and the earth’s commons to the point of collapse, or reasserting the fact that “no man (sic) is an island,” that we live in a commons and are tied by those commons to survive and live.
FLOW’s hope is to apply what Joe Sax’s envisioned for the public trust doctrine as an umbrella or benchmark that protects those parts of our world that are the commons, particularly the water that runs through all. FLOW’s articulation and application of this vision is described in a recently published article:
A possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that view the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles. The public trust is necessary to solve these threats that directly impact traditional public trust resources like the Great Lakes and its tributary waters. The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, watershed, through which water flows, evaporates, transpires, is used, transferred, and is discharged in a continuous cycle. Every arc of the water cycle flows through and effects and is affected by everything else, reminiscent of what Jacques Cousteau once said, “We forget that the water cycle and the life cycle are one.” All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.
Professor Joe Sax, we re-dedicate our work to you and what you stand for.
Memorial Services for Joe and his family will be held Sunday, March 23, 2014, Congregation Emanu-El, San Francisco.
[Please note that the editorializing in the parenthesis in the list below are wholly mine and should not be attributed to Professor Sax. Better to read these selections yourself]:
Defending the Environment – A Strategy for Citizen Action (1972) (a ground-breaking book that called for legal standing and access to the courts for citizens and urged responsibility and duty for government and everyone to protect the natural bounty of this world).
The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention (a seminal landmark article that compiled and offered the public trust doctrines as a broad and deep approach to address the systemic threats to our most special places, parks, and common waters).
The Michigan Environmental Protection Act of 1970 (the first model and adopted citizen suit law to protect the air, water, natural resources and the public trust in those natural features and our common air and water).
Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971) ( some property, whether public or private, are so inextricably related to public health and welfare that protection of such lands and features preserves what is public without taking private property rights, where none can be said to have been truly expected in the first place).
The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich L. Rev. 1003 (1972) (Joe Sax and Roger Connors published a thorough monitoring of cases and decisions under the new MEPA; Roger Connor was the first of several Professor Sax “protégés” who worked under him to help interpret and understand the facts, data, and law evolving under what was later labeled by the Michigan Supreme Court “the common law of environmental quality”).
Environmental Citizen Suits: Three Years Experience under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1 (1974) (Joe DiMento published the second “report” on the MEPA with Joe Sax, this time fleshing out some of the political, statistical, and jurisprudential implications).
Michigan Environmental Protection Act in its Sixth Year, 53 J. Urban. L. 589 (1976, University of Detroit Law School) (Jeff published the next report, this time shaping the growing number of trial and appellate court decisions, upholding the constitutionality of the act, demanding high level of judicial review, and imposing duties on government to consider impacts and prevent and minimize environmental degradation).
Helpless Giants: National Parks and the Regulation of Private Land, pp. 108-109, 75 Mich L. Rev. 239 (1976) (Joe Sax had a passion for wilderness, particularly protecting the values of our national park system, and considered the authority of the National Park Service to protect those values from activities that impacted them adjacent or near the parks).
Mountains Without Handrails: Reflections on the National Parks (University of Michigan Press, 1980) (Joe Sax’s reasoned plea for preserving the values of wilderness and the National Parks through deep personal engagement in the parks to appreciate the “genius” of what energized the creation of the park in the first place).
William O. Douglas Award (for extraordinary legal achievement, Sierra Club, 1984).
Distinguished Water Attorney Award (Water Education Foundation, 2004).
The Limits of Private Rights in Public Waters, 19 Env’t’l Law J. 473 (1989). (Professor Sax pointed out that for 2,000 years water has been understood as public in the sense that it is within the crown or sovereign people, represented by government; and at the very least water has never been owned by anyone, and as such there is no right and should be no expectation of private ownership of water, merely use consistent with the larger public values represented by these common waters).
Playing Darts with Rembrandt (University of Michigan Press, 1999) (Here, Joe Sax goes beyond the boundaries of traditional thought, and in riveting short-story like tales of battles, scars and defacing or covering up great works of art and culture makes the case for limitations on the right to destroy or impair art, that is, unless you are the artist her/himself).
The Blue Planet Prize (Glass Foundation, 2007) (awarded to Joe Sax for his pioneering work and invention of the environmental citizen suit to democratize a government too much influenced by its own ends or the ends of those who influence it and protect to a degree the ecosystem on whom all depend).
I could go on, but the above selected titles are only illustrative of how deep his passion and love for beauty and the natural world and his sense of justice ran (and, through his legacy, will run). And these writings reveal how his modest but irrefutable strong force of reason and values overwhelmed (and will continue to overwhelm) or piqued his audience.
Contact: Liz Kirkwood, Executive Director
email@example.com or 231-944-1568
Public Trust Doctrine Policy Framework Encouraged in Final LEEP Report
FLOW Commends International Joint Commission as “Forward-Thinking”
TRAVERSE CITY, MI – FLOW lauds the International Joint Commission (IJC) for including public trust standards into its recommendations for solving Lake Erie’s harmful algal blooms in its 2014 final Lake Erie Ecosystem Priority (LEEP) report. FLOW’s comments to the IJC on its draft LEEP report (2013) urged state governments to apply public trust standards as a key strategy for restoring and protecting Lake Erie’s waters. FLOW congratulates the IJC for their forward-thinking approach, one that includes the public trust doctrine as a mechanism that extends beyond traditional regulations to eliminate the nutrient runoff loads causing of algal blooms.
Harmful algal blooms (HABs) – an issue once thought to be solved when legislation regulated public wastewater treatment facilities and outlawed phosphorus from soaps and detergents in the 1970s – created a “dead zone” the size of Rhode Island and Delaware combined on Lake Erie in 2011. HABs emerge perennially in the summer months, and excrete toxins that pose hazards to swimmers, fish and fishers, boaters, tourists, and property owners. Under the premise that HABs interfere with these protected public water uses and impair water quality, state- and province-level officials can invoke the public trust and use it as a policy tool to achieve more aggressive reductions in phosphorus (and related nutrient) run-off from agriculture and municipal sewer operations in order to reduce and prevent future algal blooms.
In the final LEEP report, the IJC encourages states and provinces in the Great Lakes Basin to apply the public trust as a framework for future policy decisions in order to prevent and minimize harmful algal blooms (HABs) in Lake Erie. From the final LEEP report:
“The governments of Michigan, New York, Ohio, Pennsylvania and Ontario should apply a public trust framework consisting of a set of important common law legal principles shared by both countries, as an added measure of protection for Lake Erie water quality; government should apply this framework as an added decision-making tool in policies, permitting and other proceedings…”
Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment. The effects of HABs – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.
“We applaud the IJC for its foresight and guidance on one of the greatest threats to the Great Lakes, and urge the states to immediately implement and evaluation actions necessary to address nutrient runoff problems,” says FLOW Founder Jim Olson. “The IJC’s sense of urgency and call for cooperation sets the tone for immediate action in reducing reactive phosphorus loading, aimed at the “hot spots” first,” he says.
“The call for a public trust framework recognizes a benchmark adopted by the courts of all eight Great Lakes states and Ontario,” he explains. “This benchmark means governments must act. They have an affirmative duty,” he says.
“It also means that all private interests involved with phosphorus management practices, farming, and the non profit organization sector must work together, because we share this common water held in public trust. Finally, it means that if the states, province, and those engaged activities that fall short of best practices or fail to reduce phosphorus by setting a limit for Lake Erie, then the citizens as legal beneficiaries may seek recourse to make sure that the continuing nuisance and interference with private and public uses of high value are protected,” he says.
FLOW has worked on the issue of public trust as it relates to HABs for several years. In 2011, Olson and Council of Canadians National Chairperson Maude Barlow authored and presented a report to the IJC on the application of public trust principles to the Great Lakes. In 2013, FLOW submitted comments to the IJC on their 2013 draft LEEP report that enumerated how the public trust framework can complement present regulations and cooperative efforts to prevent nutrient run-off from creating HABs in Lake Erie and elsewhere.
HABs are becoming an increasingly common problem in other Great Lakes regions including Green Bay, Saginaw Bay, and along some parts of the eastern shoreline of Lake Michigan. “Utilizing the public trust framework as a means for solving HABs in Lake Erie is just the first step,” says FLOW’s executive director, Liz Kirkwood. “Once the Lake Erie Basin states demonstrate the application and effectiveness of the public trust in solving HABs, it will be much easier for the rest of the Great Lakes Basin states to follow suit. This problem is not limited to Lake Erie.”
The IJC has taken a significant step to lead the governments and citizens and interested parties to a goal of reduced phosphorus loading of Lake Erie, to a point where the reactive devastating harm and public nuisance can be abated.
Systemic Threats to Great Lakes Demand an Immediate Paradigm Shift to Water as Commons Protected By Public Trust
“We forget that the water cycle and the life cycle are one.” – Jack Cousteau
The systemic threats to the Great Lakes water, like the “dead zone” covering nearly one-third of western Lake Erie, with alarming algal blooms extending along the bays and shores of Lake Michigan, call for immediate action by state governments. That action is demanded by the public trust doctrine.
This ancient legal principle is alive and well in the Great Lakes, and places a fiduciary duty on states to prevent subordination or impairment of the public rights of use and enjoyment of these waters, and the waters and ecosystem that support them.
The states have been called the “sworn guardians” of this trust in the same way a bank trustee is accountable to its beneficiaries. If we demand and act to assure the integrity of these waters using the public trust principle as the benchmark, we will start making the right decisions about water, energy, food, transportation, and communities.
It’s a threatening time with the Great Lakes facing a critical mass of issues such as algal blooms, invasive species like Asian Carp, sewage overflows, threatened diversions, climate change and extreme water levels, overuse and waste from such water-intensive uses as crops, fracking, or poor urban infrastructure. But is an exciting time, with an open slate of new choices for our communities, businesses, farming and food, careers and jobs, transportation, and economy. In this century the public trust principles offer a unifying pathway or beacon to help us get there.
More and more biologists, hydrologists, and other scientists have documented that the billions of dollars spent worldwide in the past several decades to protect crucial conservation lands, international and national parks, wilderness, and biologically significant areas may be futile. The data shows all of the Earth’s natural systems are decline, despite our best efforts. This is because pollution, waste, and the effects of globally harmful practices like climate change or the release of hazardous substances do not know political or legal boundaries.
It is also because these larger systemic or massive harms have overwhelmed not only water and ecosystems but our twentieth century legal framework. Regulation by permit for every drop that is discharged to a sediment basin, treatment plant, lake or stream may have worked for specific place at a given time. But the fact is that these regulations have legalized lesser amounts of pollution or higher amounts of water losses and waste than watersheds and larger ecosystems like the Great Lakes can withstand.
For example, the International Joint Commission has documented and called for adaptive management practices to respond to the extreme changes in water level caused by climate change. Scientists, including those studying global warming, ice cover, precipitation, and evaporation, have documented that climate change is resulting in droughts with exponentially harmful effects on water levels and impacts on wetlands, streams, lakes, biological systems, fish, and habitat. Data shows a direct connection between the “dead zone” caused by non-point run off of phosphorous and nutrients into Lake Erie. The phosphorous combined with warmer water temperatures, clearer water from invasive species, to produce a toxic algal bloom covering nearly one-third of Lake Erie, closing beaches, killing fish, damaging fisheries, swimming, boating and recreation. These same blooms have been showing up in Michigan’s Saginaw Bay and Wisconsin’s Green Bay. Then there are the quagga mussels and hundreds of other invasive species, including the threat of Asian Carp that would alter and potentially wipe out a billion dollar fishery in the Great Lakes.
“Extreme energy” – massive, intensive, unconventional desecration of water, nature, and communities – is another example. As the global water crisis and droughts around the North America and the world intensify, there will be increasing demand to force water out of the Great Lakes basin to the southwest, the oil and gas development fields in the west, or to grow crops here to export food to drought or water-poor countries like China and the Middle East – so-called “virtual water.” Demands for diversions and exports of food and water will run up against demands for water for industries, food, urban areas, and recreation – all the backbone of our economy.
A dramatic example is the unfolding drama over the expanding use of pipelines and shipments of oil and natural gas from the Alberta tar sands and North Dakota heavy oil and natural gas through and over the Great Lakes region. Canada proposes two double the volume of tar sands oil the Alberta Clipper – Line 67 – will transport to Superior, Wisconsin on Lake Superior. From there a much dirtier, heavier oil with bitumen may be transported through Line 5 across Michigan’s Upper Peninsula, under the Mackinac Straits of Lake Huron and Lake Michigan, down through Michigan and under the St. Clair River to Sarnia. A spill under the best response conditions would cover 25 square miles of the Straits area. A spill from a ship carrying heavy oil would have equally decimating impacts.
So what framework and legal principles will work to save the Great Lakes and the rights and interests of the 40 million people who live around the largest freshwater surface water system in the world – 20 percent of the world’s fresh surface water? The public trust doctrine and its set of discrete principles that have protected water from private control and abuse for over 1,500 years.
Public trust waters cannot be subordinated or transferred to the primary or exclusive control of private interests and gain.
Public trust waters and the right of public use and enjoyment cannot be significantly impaired from one generation to the next.
The states and provinces of Canada have a fiduciary duty to account to and assure their citizens that principles 1 and 2 have not and will not be violated.
These are the benchmarks for everything we face and how we should decide what is acceptable and what is not in terms of living up to the public trust doctrine. What’s been hard for sometime, that is until these recent systemic threats, is to understand that these waters and their management by states as trustees are commons, not private property. Markets and concepts of private property apply to private things. Public trust principles apply to common public things. It’s that simple. If we take to understand what is happening, and apply these benchmarks, we, our children and grandchildren will share in the same enjoyment and as we have in these waters held and managed under a solemn perpetual trust.
If you want to read about the history and principles under the public trust doctrine that apply to the Great Lakes basin in the U.S. and Canada, read the article in full, click here, or for reprints or hard copies of the article, contact Vermont Journal of Environmental Law editor Emily Remmel or visit vjel.vermontlaw.edu.
As Maude Barlow puts it in her new book Blue Future: Protecting the Planet for People and the Planet Forever (The New Press 2013), “Olson writes in the Vermont Journal of Environmental Law, ‘a possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that views the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles.’ He goes on to say: ‘[t]he public trust is necessary to solve these threats that directly impact traditional public trust resources. The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, and watersheds through which water flows, evaporates, transpires, is used, transferred, and is discharged [and recharged] in a continuous cycle. Every arc of the water cycle flows through and is affected by everything else, reminiscent of what Jacques Cousteau once said, ‘We forget that the water cycle and the life cycle are one.'”
“For a successful technology, reality must take precedence over public relations, for nature cannot be fooled.” – Richard Feynman
As a non-partisan policy and education center focused on protecting the Great Lakes, FLOW undertakes projects and programs based on the demonstrated reality of problems needing resolution. Unequivocally, FLOW’s mission and sole motivation is to protect our common fresh water resources from permanent harm through education and empowerment of leaders and citizens.
Recently in several online articles, FLOW was misrepresented as an “anti-fracking” “advocacy” group. We were painted as “environmentalists” possessed by an ulterior motive to obstruct the existence of the oil and gas industry, writ large, through “backdoor” practices.
We would like to clarify for the public record that these characterizations are neither true nor reasonable. Rather, our program for local governments to address fracking impacts is an apolitical and pragmatic solution for communities who approach FLOW and voluntarily participate in the program. Our approach is based on factual information regarding the potential risks of fracking and oil and gas development, and what local governments can and cannot do. It is then up to local communities and citizens to identify their local concerns and implement the legal tools and ordinances that address those concerns.
Our method is to work transparently and in direct participation with citizens and officials involved in the issue and solution. This democratic, participatory approach to problem-solving is why we pursue both policy and education as a means of protecting the public interest and maintaining the quality and quantity of our public common waters.
Our program to address local impacts of fracking derives from our thorough and intensive legal analysis report on the topic. FLOW was prompted to investigate the impacts of fracking as it relates to freshwater consumption in the unconventional horizontal (also known as high-volume) fracking process, which in Michigan uses unprecedented volumes of water (more than 21 million gallons per frack well).
The water-intensive horizontal fracking technology we’re seeing proliferate throughout the U.S. is occurring in a vacuum of federal and state regulations, and the industry is exempt from several key water, air, land, and public health protections.
In the spirit of Feynman, we echo the sentiment that, in regards to this particular fracking technology, “reality must take precedence over public relations, for nature cannot be fooled.” FLOW’s intention is to address the reality of fracking impacts as they affect nature and human health in our communities. Despite the fallacious clamoring from some sources that say we are advocates, Luddites, or otherwise in denial of modernity, we at FLOW are – and will remain to be – nonpartisan nonprofit consultants working to protect the public interest of our Great Lakes water.
How often do you hear a story in the news and then feel utterly shocked that you didn’t know anything about it? Well, that’s how all 40 million of us living in the Great Lakes should feel about the Enbridge Line 5 expansion across the Straits of Mackinac—a pipeline expansion project that will transport tar sands oil directly through the heart of the Great Lakes. In a nutshell, this just may be the greatest threat facing the Great Lakes at this time in history. “An oil spill in the Straits of Mackinac isn’t a question of if—it’s a question of when,” according to National Wildlife Federation’s (NWF) comprehensive report on this issue, Sunken Hazard.
What would a tar sands oil spill the size of Exxon-Valdez mean for the Great Lakes? Goodbye fisheries, aquatic food links, goodbye wildlife, goodbye municipal drinking water, goodbye Mackinac Island, goodbye tourism and property values, and goodbye to one of the world’s largest freshwater inland seas.
What company is stealthily completing this hazardous energy venture with limited public scrutiny? Enbridge—the same Canadian company responsible in 2010 for a million gallon tar sands oil pipeline rupture and a $1 billion cleanup along a 35-mile stretch of Michigan’s Kalamazoo River. Known as the largest transporter of crude oil, Enbridge is requesting a permit from the State Department’s U.S. Transportation Department’s Pipeline and Hazardous Materials Safety Administration (PHMSA) to expand its existing pipeline—Line 67 also known as the Alberta Clipper—to transport heavy tar sands oil originating from Alberta, Canada to Superior, Wisconsin. From there, Enbridge, according to company officials, has already expanded the capacity of a second existing pipeline—Line 5—that travels directly through the Straits of Mackinac to a refinery located in Sarnia, Ontario. The 1,000+ mile Alberta Clipper pipeline route will double the tar sands oil that it currently carries and will deliver even more tar sands oil than the highly publicized and controversial TransCanada Corp’s Keystone XL pipeline.
Built sixty years ago in 1953, Line 5’s twin pipelines that cross the Straits of Mackinac—each 20 inches in diameter—were designed to transport light conventional crude oil, not Enbridge’s viscous, heavy tar sands oil or “bitumen” blended or diluted with volatile natural gas liquid condensate, also known as “dilbit.” Dilbit spills are particularly difficult to remediate because the bitumen and diluents separate, releasing toxic volatile organic compounds (VOCs) and heavy, sticky bitumen material. And in Lake Michigan, who knows how long it would take to actually clean up these pollutants. The National Oceanic and Atmospheric Administration (NOAA) estimates that it takes an average of 99 years to rid of pollutants in Lake Michigan.
Now let’s dig a little deeper into Enbridge’s depressing track record. According to NWF, “Enbridge’s pipelines had more than 800 spills in the U.S. and Canada between 1999 and 2010, leaking 6.8 million gallons of oil.” So with the combination of strong currents along the Straits, Enbridge’s inexcusable track record, its weak emergency response, and a strong likelihood of mechanical pipeline failure in this fragile ecosystem, we must ask ourselves: is this a risk we as citizens, inheritors, and future protectors of the Great Lakes are willing to accept?
This Enbridge pipeline expansion is a perfect example of why we have the public trust in our navigable waters—an ancient legal doctrine dating back to the Roman times—designed to protect our common shared resources like the Great Lakes. The public trust empowers us as a democratic and thoughtful people to question the impacts of proposed actions like Enbridge’s and determine whether they will impair, pollute or irreparably harm our water resources, and jeopardize protected water uses like fishing, swimming, and navigation.
This proposed action is a clear violation of the public trust as the pipeline threatens to destroy the Great Lakes’ common waters, which support the region’s $62 billion economy with 1.5 million jobs, drinking water for 40 million citizens, as well as our very social fabric, quality of life and enjoyment, and shared ecosystem with wildlife. The unprecedented scale of such an ecological and economic disaster also would undermine the $1 billion already invested in the U.S. government’s Great Lakes Restoration Initiative. This is why the public trust and its protection of the commons is more important than ever.
What this debate really boils down to is a much-needed larger national conversation about our country’s future energy policy. Not only does President Obama need to have the Keystone XL pipeline on his radar, but all pipeline expansions like this project, in assessing the impacts of climate change. It’s time that our nation makes good energy choices that respect the Great Lakes as a shared common resource protected by the public trust. We need to put the safety of our water and our future generations before our overzealous energy development. If we do this, we can chart a future with clean and abundant water, food, energy and a prosperous economy.
Looking for something concrete to do about this pressing pipeline issue? Come join FLOW, TC350, 350.org, National Wildlife Federation, Michigan Land Use Institute, Food & Water Watch, and many other organizations and attend the Oil and Water Don’t Mix: A Rally for the Great Lakes on July 14th at the St. Ignace Bridge View Park, just north of the Mackinac Bridge. The purpose of the rally is to bring attention to the dangers of this pipeline and its expansion, and to organize a response to these risks. We want to pressure our leaders to put safety measures in place to prevent a devastating oil spill in the heart of the Great Lakes. Click here to sign up and RSVP via this Facebook event.
Flow Featured on UpNorth TV’s Volunteer Northwest Michigan Program in July
TRAVERSE CITY, MI – FLOW, the Great Lakes Basin’s only public trust policy and education center, will be featured on UpNorth TV, channel 2, throughout the month of July, every Sunday and Wednesday evening from 8pm-9pm, and every Friday morning from 9am-10am. Hosted by United Way of Northwest Michigan, the Volunteer Northwest Michigan show highlights FLOW’s innovative programs to ensure the waters of the Great Lakes are protected now and for future generations. UpNorth TV’s feature on FLOW will also be available online.
Steven Wade, United Way’s Executive Director of Northwest Michigan, interviews FLOW’s Chair and President, Jim Olson, Executive Director, Liz Kirkwood, and Communications Designer, Allison Voglesong, about how locals can volunteer with FLOW and take part in protecting our beloved Great Lakes.
FLOW has several upcoming volunteer opportunities. On July 5th, FLOW will participate in DTE Energy’s Green Day during Cherry Festival. Volunteers will assist members of the FLOW staff educate the community about threats to the Great Lakes with a fun and interactive game. Additionally, volunteer positions are available for Blissfest on July 12, 13, and 14; Friday Night Live on August 9; and our Annual Celebration on August 17. Sign up here to volunteer.
Additionally, this TV segment discusses FLOW’s programs, including the public trust education program, water levels program, local government “fracking” ordinance program, and water-energy-food-climate change nexus program. Additionally, Jim Olson, environmental attorney, who has been practicing environmental and water law for more than 40 years, gives an in depth history of water law in Michigan and tells the story of how FLOW evolved from a coalition to a policy and education center.
FLOW’s approach to policy and education for preserving and protecting the Great Lakes centers on the ancient principle of the public trust. The public trust is a key principle that enables citizens and governments to protect our waters as a commons, owned and shared by the public for the use and enjoyment of all. The public trust doctrine is the legal foundation for protecting and maintaining resources such as beaches, navigable waterways and harbors, wetlands and wildlife, tributary streams, and groundwater. Additionally, it protects public uses including navigation, commerce, fishing, boating, swimming, other recreational purposes, and drinking water.
Fishers, boaters, swimmers, beach-goers, and other water-lovers of all ages should tune in to UpNorth TV in July to learn more about how they can work with FLOW to ensure that the Great Lakes are protected for our favorite activities now and for future generations.
The segment will air on Charter Cable’s analog channel, 97, and digital channels, 2 and 992, throughout Northwestern Lower Michigan from Manistee to Cheboygan.
# # # FLOW is the Great Lakes Basin’s only 501(c)(3) nonprofit public trust policy and education center. Our mission is to deeply educate communities and leaders about the public trust as a solution for sharing andpreserving our common waters.