This article is excerpted from the third of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss, that make the economic case for government’s role in protecting the environment. The third policy brief, “Resetting Expectations: The Multifaceted Benefits of Regulation for the Economy and Environment,” is available here to read or download.
Pruss’ first policy brief in the series, “Resetting Expectations: Government’s Role in Protecting Human Health and the Environment,”is available here in executive summary and in full.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. (FLOW will unveil the last brief in early December.)
Common to the understanding of economic conservatives is the notion that government regulations interfere with “free markets,” serve as a brake on economic activity, and stifle innovation and competition. The term “regulation” itself suggests to many burdensome “red tape” and unnecessary interference in the market economy.
The evidence proves quite the opposite. Regulations, properly designed and implemented, can be a powerful force fostering innovation in product design, advanced materials, and manufacturing processes. Regulations can reduce manufacturing costs for industry and business, enhance competition, reduce business risks, and expand and create new markets for goods and services.
Environmental regulations, in particular, have created a huge global market for environmental technology, goods, and services. The result is not only marked improvement in the quality and vitality of ecological systems, but health benefits accruing to the public that are valued at trillions of dollars.
Environmental regulations can catalyze needed change in otherwise stagnant areas in business, agriculture, and government. The protection of the Great Lakes freshwater system is a case in point. Billions of dollars have been invested in the management of wastewater and stormwater through the creation of a network of sewers, drains, pipes. New integrated water management systems that include nature-based solutions are proving to be more protective, cost-effective, and sustainable then conventional systems.
Yet investment in superior “green infrastructure” is sorely lagging as both local government and the business community remain fixed on investing in conventional “grey infrastructure.” This paper provides a menu of possible regulatory interventions to address this problem.
Newly formed constituencies focused on policy innovation and educating community leaders on the value and benefits of enlightened water management practices are on the rise. Initiatives like “Our20 Communities,” the Great Lakes Water One Partnership, and Water First all share a vision of aligning community values around a commitment to protecting water.
Integration of the Public Trust Doctrine into local decision-making could, over time, imbue an ethic of enlightened water stewardship, creating a proactive culture to protect and safeguard commonly held resources.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
I just finished immersing myself in global public-water activist Maude Barlow’s incisive new book, Whose Water Is It Anyway?: Taking Water Protection into Public Hands (ECW Press, 2019).Thanks to Maude and the publisher, I received an advance copy a few weeks ago on the promise of a book review, which remains a work-in-progress for next week.
But first, I couldn’t wait to share this article about the Vancouver Writers Fest and its feted authors Barlow, Canada’s leading world water leader, activist, and author of 19 books, and, then, Naomi Klein, equally visionary environmental, climate change, and green activist and writer.
Why my urgency to spread this coverage? Because the Vancouver Writers Fest has captured the urgency of the moment due to the changing climate and its implications for the future control of, and human right to, water.
It is notable that the famed fiction writers’ conference has elevated these two nonfiction writers, whose works herald the citizens of the world to leave the past, become fearlessly engaged in life, not accumulation and consumerism, and halt the privatization of the world’s water.
Those of you who follow FLOW’s Facebook page understand that water is public and held in trust for the benefit of citizens, that privatization is not only morally wrong, but also that when it comes to our public water, schemes to privatize water are, and should be declared, legally and constitutionally prohibited.
Thanks to Maude Barlow, Meera Karunananthan, Emma Lui at the Council of Canadians, the Blue Planet Project, the World Social Forum, and the dedication of so many other individuals and organizations, the United Nations in 2010 declared in successive resolutions that water is a human right. Barlow tells this quiet, heroic story in her new, Whose Water Is It Anyway? It’s a story that should be read by everyone who cares about liberty, dignity, harmony, and the common good of people and planet.
But the deeper, highly readable story she tells is of her own personal journey, and those of others, in a fierce dedication against private control of water on the planet—privatization—everywhere in now in ways both commonplace (for example, Nestlé’s extraction of public groundwater and spring water for billions of dollars in bottled water profit) and extraordinary (e.g. Bechtel’s attempted takeover of Bolivia’s water).
Then there is Naomi Klein’s new book, On Fire: The (Burning) Case for a Green New Deal (Simon and Schuster, 2019), a book that calls on all of us to step into the future now, by giving up rampant material consumerism that is killing the planet, and lighting the fire of a movement that turns on-end our gorging ourselves on the planet and each other—a movement in which we turn to each other and what is good for the planet.
Preachy? Not really. I’d call it a practical, common sense call to action for all of us to join in the creation by FLOW and the Council of Canadians of “Blue Communities” that put water first as if our lives depended on it: Good for all of us, especially children and grandchildren everywhere who will be facing the turmoil and dangers of an over-heating planet in 30 years from now.
So, read the article, and, yes, pick up a copy of these two books! Then take action, because these two authors help show the way. And dive into FLOW’s website for further insight and guidance on how to keep public water in public hands, and steep yourself in FLOW’s mission to defeat privatization and protect water as a commons through the public trust doctrine.
Court accepts amicus briefs supporting enforcement of State of Michigan public trust duties in Enbridge’s lawsuit
Jim Olson, President and Founder
By Jim Olson
The Michigan Court of Claims has issued orders accepting FLOW’s and the City of Mackinac Island’s amicus briefs advancing key legal arguments in Enbridge’s Line 5 oil tunnel lawsuit against the State, rejecting opposing arguments by the Canadian oil pipeline company.
The ruling in Lansing by Judge Michael Kelly in late September means that vital issues raised by FLOW’s brief and the city’s brief will be considered by the Michigan Court of Claims, including the public trust rights of citizens to draw drinking water from and otherwise use the Great Lakes, and the soils and bottomlands beneath them, unimpaired by private interests.
FLOW’s Amicus Curiae Brief was prepared and submitted by Great Lakes environmental and public trust law experts Jeff Hyman, senior staff attorney at the Conservation Law Center in Bloomington, Indiana,and FLOW’s president and legal advisor Jim Olson. The brief traces the history of the public trust doctrine in Michigan and demonstrates the failure of Enbridge and the State to make the determinations required for authorization of the occupancy and use of waters and soils beneath the Great Lake by a private corporation under public trust law and the Michigan’s Great Lakes Submerged Lands Act (GLSLA).
“This is an important step in restoring the rule of law on Line 5,” said FLOW executive director Liz Kirkwood. “The Great Lakes belong to all of us and cannot simply be handed over to a private corporation through a hurried backroom deal by a lame-duck legislature. If Enbridge really wants a tunnel, it will have to apply under state law and demonstrate no potential risk of adverse impacts and no other alternative pipelines to transport crude oil that avoid the Great Lakes.”
Background on Amicus Briefs
On Sept. 10, FLOW filed a motion to submit an amicus brief before the Court of Claims in Enbridge v. Michigan on important questions involving violations of the public trust doctrine. FLOW noted that the future of the public trust rights of citizens and communities in the Great Lakes were violated by the 2018 “lame duck” agreements that would have contracted away the legally required review of impacts of a tunnel pipeline to the Great Lakes, fishing, drinking water, health, and the economy imposed by the constitution and law of Michigan.
In Michigan, people, organizations, and communities have a right as beneficiaries of the public trust in the Great Lakes to demand that government apply the rule of law. Where this interest would be seriously affected by the questions presented in a pending lawsuit, citizens and local governments may motion the court to file an amicus curiae brief—“friend of the court” written arguments submitted to aid the court regarding the questions and how the law should be applied.
The City of Mackinac Island, meanwhile, filed a motion and amicus brief submitted by Traverse City environmental attorneys Scott Howard and Rebecca Millican. The arguments in the city’s brief pinpointed for the Court the grave consequences to the city’s drinking water source, emergency and health services, ferry services, and tourist economy, in addition to the wellbeing of guests and residents from the continued operation of the decaying Line 5 oil pipelines in the Straits. The city’s amicus brief focuses on the invalidity of the 2018 agreements between the State and Enbridge, which purported to grant Enbridge the right to continue using and occupying the waters and soils of the Great Lakes without any authorization under the public trust or GLSLA requirements.
FLOW’s position remains that the attempt by the Snyder administration to allow Enbridge to continue operating the existing perilous Line 5 in the Straits while Enbridge spends 5 to 10 years or more designing, obtaining required authorizations under public trust law and constructing a tunnel is not a solution. An oil pipeline tunnel 10 years or more down the road does not address Line 5’s immediate threat of massive harm to the Great Lakes nor address the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. In addition, Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel poses an explosion risk. Oral arguments in the case have not been scheduled, so stay tuned to FLOW’s website and Facebook for periodic updates. At stake are the integrity of the State of Michigan constitution, state law, public trust doctrine, and protection of the Great Lakes, public health, and the rights of its citizen to use their public waters.
Lame-Duck Disaster and Side Deals
In December 2018, at the 11th hour of his term, then-Governor Rick Snyder and his department heads of the Department of Natural Resources (DNR) and Department of Environmental Quality (DEQ)—now Department of Environment, Great Lakes, and Energy (EGLE)—signed tunnel agreements by-passing the public trust doctrine and Great Lakes submerged lands law that expressly control agreements for private occupancy and use of the waters and bottomlands of the Great Lakes.
To expedite the tunnel deal before the end of the year, the Governor and Enbridge solicited the help of the lame duck legislature to push through Act 359. That tunnel law amended the Mackinac Bridge Authority’s enabling legislation and created a new authority called the Mackinac Straits Corridor Authority to cede the state’s public trust bottomlands and waters to Canada’s Enbridge.
In late December, the state DNR and DEQ, along with the Corridor Authority signed a series of agreements, including an easement, that illegally assigned the use of the public trust soils under the Great Lakes to Enbridge to locate, build, and operate a new oil tunnel for Line 5 under the Straits.
Separately, but related, Governor Snyder, DNR, and DEQ entered into a “third agreement” that sought to assure Enbridge the right to continue indefinitely the use of the bottomlands of the Straits for the existing 66-year-old Line 5 oil pipelines. Polls and public testimony show that much of public agrees the cracked and sagging pipelines must be removed as soon as possible. With its failing design, Line 5 poses an unacceptable risk of catastrophic harm to fishing, navigation, drinking water, swimming, boating, health and emergency services, Tribal rights, the ecosystem, property values, municipal infrastructure, tourism, and even the steel industry. The attempt to assure Enbridge continued use of the existing Line 5 was unlawful and grossly serious breach of the State’s duty to protect the Great Lakes.
New Leaders Apply the Rule of Law to Line 5
In early January 2019, newly elected Governor Gretchen Whitmer exercised her executive authority under the state constitution, and requested Attorney General Dana Nessel to issue a formal legal opinion on the constitutionality of Act 359 and the validity of the series of the 2018 agreements purporting to turn over the Straits of Mackinac to Enbridge for its tunnel and to continue using the dangerous Line 5. On March 27, Attorney General Nessel ruled that Act 359 and these agreements were unconstitutional, invalid, and unenforceable.
In June, Enbridge filed suit in the Court of Claims in Lansing against the State of Michigan and its departments to resuscitate the oil tunnel deal by seeking a Court order that Act 359 and all of these agreements are constitutional and otherwise valid and enforceable. A.G. Nessel and her staff responded with a motion to dismiss Enbridge’s claim because the law and related agreements are unconstitutional and violate the public trust in the waters of the Great Lakes and the soils beneath them. Enbridge responded that the law was within the powers of the legislature, and that the agreements complied with the public trust doctrine.
Underlying Legal Framework
Under the public trust doctrine, the state owns the bottomlands and waters of the Great Lakes in a trust for the protection of these waters, bottomlands, fish, habitat, and for fishing, navigation, drinking water and sanitation, boating, swimming, and other recreational pursuits. The doctrine prohibits the disposition or agreement for occupancy and use of public trust bottomlands by a private person or corporation without an express determination that the disposition falls within one of two narrow exceptions:
The purpose will improve a public trust interest or use—the water, habitat, fish, or one of the protected public uses (such as a public harbor for boating, or public drinking water works, or swimming beach); or
There is no unacceptable risk of impairment to the waters, ecosystem, or these protected public trust uses.
In 1955, Michigan passed the Great Lakes Submerged Lands Act (GLSLA) to protect the public waters and lands beneath the Great Lakes. Under the GLSLA, no one can use, alter, occupy or control the soils and waters of the Great Lakes, unless authorized by the DEQ (now EGLE) after due findings that the public trust interests (e.g. navigation, fishing, drinking water) would be improved or would not be impaired.
When Governor Snyder and his department heads cut the tunnel deal with Enbridge, they contracted away these legal requirements, basically suspending the rule of law in Michigan.
You might say our leaders suspended the law and granted Enbridge an “open season” license to do what it wanted with the public’s paramount trust interests in the Straits of Mackinac. The Governor, DNR, and then-DEQ failed to require Enbridge to apply for legal authorization to continue using the existing Line or the proposed Tunnel under public trust law or the GLSLA.
As of this writing, there has been no such authorization from the State of Michigan allowing Enbridge to own, control, use, or occupy the public soils and waters of the Straits. And FLOW, the city of Mackinac Island, tribes, and citizens of Michigan aim to keep it that way.
Iowa state agencies and officials to stand trial for breach of Public Trust duty to prevent harm to streams, fishing, swimming, and drinking water
Jim Olson, FLOW President and Founder
By Jim Olson
The foot-dragging by public officials to take action against deadly algal blooms and pollution from bad farming practices finally has reached a tipping point.
It was just a matter of time before a court would step in to force state government to implement a plan to stop the high concentrations of phosphorus, nitrites, and other harmful substances reaching our public lakes and streams from large corporate farm runoff.
Last year, a federal court dismissed a a similar lawsuit filed under federal law. This time, citizens and Food and Water Watch, represented by Public Justice, a national public interest law firm started decades ago by the late Dean Robb of Suttons Bay, Michigan, filed a lawsuit to protect the public trust in the navigable waters. When each state joined the Union (Iowa obtained statehood in 1846), the state took sovereign title and control over all of the navigable waters in a state in public trust for its citizens. Under this public trust the state as trustee has an obligation to protect these waters for fishing, navigation, boating, and swimming. Iowa trial judge John Hanson has ordered a trial to hear evidence on whether the state has abdicated its duty to prevent the impairment and subordination of these public rights by private interests. If the litigants are successful, the trial court will order state officials and agencies to implement a comprehensive plan to halt the continuous pollution of the source of drinking water for over 500,000 people.
Judge Hanson got it exactly right in letting this case proceed to trial. There is a legal duty under public trust law, there has been a continuing breach of that duty by the state, and it has resulted in harm and impairment to the public trust waters, resources, and public trust uses. The direct connection between the effects of activities on land that flow into public trust waters and resources is no different than if someone discharged pollutants or sediments directly into the water. In either instance, it is a direct result of needless human conduct that interferes with the natural water cycle—water falls on earth, percolates into ground, runs off into lakes and streams. Those who interfere with or harm the water in this cycle should be held accountable for damaging and failing to protect downstream public trust waters and the rights of citizens.
Watch out, Ohio officials, you’re next. I’ve argued in past blogs that the public trust in our navigable lakes and streams means that no one can pollute or impair these streams or sacrifice and subordinate the public’s rights and interests in drinking water, fishing, boating, and swimming to private purposes or interests. Ohioans and Michiganders have been plagued with annual dead zones for years now. Every summer a thick, toxic mat of green algae spreads across the western one-third of Lake Erie, endangering drinking water, killing fish, shutting down beaches, swimming, and tourism. Every year the governor of Ohio and state officials promise to do something. Every year nothing happens to stop the runoff.
Ohio’s governors and state officials have tinkered with laws to allow farmers to take voluntary actions, but have never taken action under the public trust duty to protect Lake Erie from harm, undisputedly the result of runoff of phosphorous from intensive corporate farms and extreme weather from climate change. When our leaders in the executive and legislative branches of government fail us, it is time for citizens to call on the judicial branch. Our democracy is founded on the checks and balances of three branches of government, not two.
Last week, FLOW’s senior policy advisor and noted Great Lakes policy expert Dave Dempsey called on citizens in Ohio and Michigan to take to the courts to put an end to Ohio’s truculence. I and others have argued that Ohio officials and the polluting big farms should be forced by the courts in Ohio and Michigan (Monroe County is on Lake Erie) to put an end to this blatant private confiscation of a treasured water resource that belongs to all citizens of these and surrounding states.
On behalf of all of us who live here in the Great Lakes Basin, our state government leaders must pass laws and file lawsuits to stop the dead zones and billions of dollars in damages to the businesses, cities and towns, and people. If our leaders fail us, then like the citizens of Iowa, it is time for citizens in Ohio, Michigan, and Ontario to file lawsuits under the public trust doctrine. The time for action is now.
For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup. There is no reason to believe next year’s 20% target will be achieved.
It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.
Where’s the outrage and action now on Lake Erie?
All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored. Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.
An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.
In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie.If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.
There is a better way.
After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources.But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.
Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.
Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job.But it appears the states won’t fulfill their trustee obligations unless the public forces them to.
The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.
This article is excerpted from the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. FLOW will unveil the last two briefs in the coming months. (Pruss’ first report in the series also is available here in executive summary and in full.)
Michigan lies at the heart of the Great Lakes, the largest fresh surface water system in the world. Harboring 95 percent of all fresh surface water in United States and 84 percent of all fresh surface water in North America, the Lakes are an enormous source of natural capital, providing direct health, economic, environmental, and ecological services to 40 million people. The Great Lakes system is a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are truly globally unique.
We in Michigan are water rich. The Great Lakes support a $6 trillion regional economy.Water is our most valuable source of natural capital, bestowing billions of dollars in ecological services by providing fresh, potable water for consumption, recreation, agriculture, and industry. Freshwater aquatic ecosystems — our lakes, streams, rivers, groundwater and wetlands — provide drinking water, produce fish, nourish unique biological niches at the land and water interface, and provide diverse recreational opportunities. Wetlands are prolific biological nurseries harboring birds, insects, waterfowl, and aquatic organisms throughout the food chain, while purifying water, storing stormwater, recharging aquifers, and buffering nutrients — essential services that are largely unknown and unappreciated. Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.
Photo: Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.
With our water wealth comes special obligations of stewardship. The Great Lakes and their tributary rivers and streams belong to the public and are held in a public trust. Government, as trustee, has the responsibility to protect the trust waters from impairment and cannot allow diminishment of water quantity or water quality. Our people, our businesses, and our economy depend on the health and viability of our Great Lakes, and others less gifted by geography will set their sights on the Great Lakes. There will soon come a time when discussions about human rights in water, growing water scarcity, and the need for a more “equitable” distribution of Great Lakes’ water wealth will elevate in Congress and state legislatures.
A recent study conducted under the Resources Planning Act, a federal law requiring periodic resource assessments on forest lands and rangelands, indicates that of the 204 water basins in the United States, 145 basins will show decreases in yield over the coming decades and nearly half may experience monthly water shortages.While climate change is projected to increase precipitation in some northern regions of the United States, increased frequency of droughts will result in reduced river flows,less reservoir capacity, and decreases in soil moisture.Globally, the situation is much worse. The United Nations reports that today “over 2 billion people live in countries experiencing high water stress, and about 4 billion people experience severe water scarcity during at least one month of the year.”
Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but, more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and who will look to our region with the belief and expectation that our water resources need to serve a larger geography. Our water wealth will be certain to attract a broad universe of water-dependent agricultural, commercial, and industrial private interests as well. At the same time, the chasm between the water rich and the water poor will grow. Great Lakes freshwater resources and the vital services they provide will only increase in value in a future where national and international water supplies become more stressed and attenuated.
Government, as the fiduciary charged with the protection of public trust resources, must use the tools and resources it has in terms of laws, regulations, and best practices to conserve and protect our water as a public good. Greater public understanding of the vital services water resources provide would empower citizens to participate more effectively in the political process and demand that policymakers and legislators take active measures to protect water. Intelligent, sensible water management and conservation practices and effective application of laws and regulations on the part of government to protect the waters upon which we all depend are imperative. Ultimately, our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our waters.
Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.
I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.
Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed.
Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.
This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.
He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.
Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.
Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”
As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”
These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.
Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.
A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.
This is the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil the last two briefs in the coming months.
The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.
Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.
Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.
In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.
The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.
Report’s Key Facts
Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers.More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health.
Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative.The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.
Government’s Role in Protecting Human Health and the Environment
Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.
Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.
It is imperative that political leaders, policymakers, and citizens come to understand this critical association.
Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.
By Kelly Thayer
Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).
Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.
While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required.The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.
“I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”
Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.
Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.
FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.
FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.
“It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”
In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional.In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.
Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.
“Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.
Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.
Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.
The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.
FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.
“The Great Lakes belong to all of us. It’s in our DNA,” said FLOW executive director Liz Kirkwood. “We know that those waters that surround us, that bathe us, that nurture us underneath our feet, are inalienable rights for all.”
During this high-water month of July, FLOW will publish video postcards each weekday that feature Michiganders (and citizens of the Great Lakes Basin) explaining what the Public Trust Doctrine means to us and how our precious, publicly-owned fresh water shapes our lives and relationship to this place we call home.
“We chose July because this is the height of summer and the connections people have with our waters,” added Kirkwood. “This is an opportunity for us to renew our commitment to the Great Lakes and think about what stewardship really means. What will we do to make sure these waters are protected for our children and our children’s children?”
At its core, the Public Trust is a set of legal principles establishing the public right to our natural resources. It also establishes the government’s responsibility to protect public health and public rights to use those natural resources. Our goal is to increase everyday awareness about the Public Trust and make it feel less like a legal term and more like an existential code by which we all live.
We saw the Public Trust Doctrine in action last week when the State of Michigan and Attorney General Dana Nessel took the important step of defending the Great Lakes by suing Enbridge and alleging that its occupation of Line 5 violates the Public Trust.
“When Michigan and other states joined this country, the states took title to all navigable waters and the soils beneath them like the Great Lakes in trust for the benefit of its citizens,” said Jim Olson, FLOW president and founder and nationally recognized expert on public trust law. “This means the State has a duty to protect these waters, soils, natural resources, and the rights and uses of citizens from one generation to the next.
“Every citizen is a legally recognized beneficiary for use and enjoyment of these public trust resources for fishing, boating, drinking water, bathing, swimming, and other recreational activities. Governments and private persons cannot interfere with, impair, dispose of or alienate these public trust resources or preferred public rights and uses.”
Olson underscored the importance of the Public Trust Doctrine and its principles at this time in history.
“Whether oil pipelines in the Great Lakes, toxic algae and ‘dead zones’ in Lake Erie, Green Bay, or along Sleeping Bear Dunes, the sale and private control of public water, changes in water levels, erosion, flooding and damage to piers, docks, roads, water infrastructure from global warming and climate climate, the public trust in our waters offers all of us a path forward to address the existing damage and threats, and the world water and climate crisis. When government fails or others refuse to change, citizens have the right to enforce the law to protect their rights and the common good of the community, and their children and grandchildren.”
Our Public Trust video postcards this month will feature everyone from a U.S. Senator and a state Attorney General, to leading environmental advocates, to poets and dancers, to boaters and fishermen, to everyday citizens recreating, beach walking and swimming in their public waters. Through these videos, we hope to empower citizens, educate people about beach access rights, discuss the importance of protecting our groundwater, and reinforce the importance of protecting our freshwater in the age of Climate Change.
On the Fourth of July, we’ll also unveil an online “Public Trust Passport” that you can view, download or print, and use as a handy guide to learn more about your freshwater recreation rights.
Stay tuned to FLOW’s social media feed to learn why Sen. Gary Peters loves backpacking at Isle Royal National Park, why poet Anne-Marie Oomen loves to paddleboard, why toddler Judah Heitman digs swimming and kayaking, and the lifelong resonance of fly fishing with her father on the Boardman River for dancer Sarah Wolff.