Now that Michigan’s governor and attorney general have sunk the oil tunnel scheme hatched by the last administration, I’m asked nearly every day: What can citizens and state leaders do to shut down the propped-up, banged-up Line 5 oil pipelines in the Straits of Mackinac for good?
Here’s my answer, as succinctly as I can distill it, accompanied by a summary of the law and political history in play.
So what should Governor Whitmer and Attorney General Nessel do?
Governor Gretchen Whitmer and Attorney General Dana Nessel must take swift and comprehensive actions to review and reverse the improper failure of the former Snyder administration to bring Line 5-owner Enbridge under the rule of law. Enbridge has had its way with Michigan’s prior elected officials, and it is time to call a halt to this nonsense. Here are the steps to getting Enbridge out of the Great Lakes for good:
Proposed Oil Tunnel:
Send a Letter: Tunnel Deal Is Dead– Governor Whitmer and Attorney General Nessel should send a formal letter to Enbridge advising the company that its agreements calling for a transfer or occupancy of the Straits of Mackinac public trust bottomlands, the new state-granted easement, and 99-year lease for the proposed oil tunnel that would house a new Line 5 are unenforceable unless Enbridge has obtained authorization under state law – the Great Lakes Submerged Lands Act (GLSLA).
Line 5 in the Straits:
Send another Letter: No Life Support for Line 5 – Governor Whitmer and the Michigan Department of Environmental Quality (DEQ), along with Attorney General Nessel, should send a letter to Enbridge advising it that the agreements purporting to grant Enbridge occupancy and use of waters and bottomlands the existing Line 5 for 10 years or more are unenforceable, because the former administration and Enbridge failed to obtain the required authorization under the GLSLA.
Apply the Law to the Redesign of the Ailing Pipelines – Governor Whitmer and the DEQ, along with Attorney General Nessel, should investigate and correct the lack of review and showings required by the GLSLA and public trust law for the substantial change in design implemented for the 3 miles of pipeline elevated above the lakebed under the guise of “repair.”Enbridge should be instructed that it must show the risks and magnitude of harm are minimal and that there exist no other alternative than the existing line in the Straits or Great Lakes.
How Did We Get Here on Line 5? Tracing the Law and the Politics
The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.
On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel to Enbridge was constitutional.In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.
Revoke the Easement – Attorney General Nessel along with the Department of Natural Resources (DNR), along with the above actions, revoke the 1953 easement because under the current circumstances the existing Line 5 is no longer in compliance with the common law standards of the paramount interests of the Great Lakes protected by public trust law; if Enbridge desires to continue using the existing line in the Straits, the company must submit an application for authorization of such use and occupancy along with the authorizations identified in this list.
Increase Insurance Requirement and Verify It – Governor Whitmer, the DEQ, and the DNR, with the Attorney General, should require Enbridge to submit financial assurances that cover the worst case economic and natural resources damages of at least $6 billion (significantly more than the current cap of $1.8 billion), retain qualified experts to determine the adequacy of those assurances, and require Enbridge to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5. Inadequate insurance is another cause for revoking the easement.
Once the Governor and Attorney General do these things, they will have taken action consistent with their pledge in being elected to lead the State and protect the Great Lakes, by nullifying the improper actions and agreements of their predecessors and bringing Enbridge, finally, under the rule of law. Regardless of the outcome, the interested parties, communities, and persons in this controversy and the government will be required to make determinations concerning the fate of Line 5 in an open forum based on facts, science, and law.We are ruled by law, not by self-serving agreements that were plotted to avoid it.
Given President Trump’s executive orders this week to water-down or smooth over federal laws and regulations affecting water, the Great Lakes, and pipelines, it is more critical than ever that Governor Whitmer and Attorney General Nessel exercise the full jurisdiction and authority they and the State of Michigan under its exclusive power over use of the waters and bottomlands of the Great Lakes, its lakes and streams, public lands, and the public trust in the Great Lakes and navigable waters and public common property of Michigan. This trust imposes a duty on our leaders to protect the interests of citizens, the legal beneficiaries of this trust. Not the President, not Congress, not federal agencies, or state government can repeal, limit, or narrow the state’s duties and citizens’ individual and common rights under this public trust.
What Should Citizens Do?
It is quite simple: Citizens should do what they always do best. Continue to stay involved, increase communications to Governor Whitmer, Attorney General Nessel, and the Director of the DEQ, and the DNR.These communications should do the following:
A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.
As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.
Holy Toledo! The Frustration!
So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie?
In a word—frustration!
Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.
In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.
The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.
Well, not exactly no action.
Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.
Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.
What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.
Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.
Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.
Symbolism, Standing, and Redress
While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do.
I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.
Recognizing Rights, and Ourselves, in Nature
Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.
Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action.
When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.
The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.
Michigan, Ohio, and the Public Trust
In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.
Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.
How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.
A Flag to Rally Around
In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.
Jim Olson, President and Founder
It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.
This is the second installment in a series of essays by FLOW board member Rick Kane on the vital issues of risk management and the responsibilities of public officials under the public trust doctrine. Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America. He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.
PFAS – Public Trust and Risk Management
The discovery of groundwater, surface water, and drinking water contamination by fluorochemicals has triggered a global search for polluted areas, toxicology studies, contaminant sources, responsible party identification, and government actions to establish regulations. PFOS (perfluorooctanesulfonic acid) and PFOA (perfluorooctanoic acid) are the primary fluorochemicals of concern; however, they are only two members of a very large class known as per- and polyfluoroalkyl substances (PFAS) under investigation. PFAS are used as raw materials and in final products such as firefighting foams, industrial cleaning and treating products, and fabric and paper with water or grease repellents, and also to fabricate membranes for medical and water treatment applications.
PFOA production started in 1947, and during the 1960s to 1990s, internal DuPont studies showed their presence in workers’ blood and drinking water, but DuPont did not disclose the findings of their studies to the U.S. Environmental Protection Agency (EPA). In 2000, the company 3M, after negotiations with the EPA, announced a phaseout of PFOS. In 2005, the EPA designated PFOA as a “likely carcinogen,” and DuPont paid a settlement for withholding information. In 2012, an independent science panel reported linkages to health problems, followed in 2015 by hundreds of scientists signing an international “call to action.” Faced with an emerging PFAS contamination crisis of its groundwater, surface, and drinking water, Michigan in 2017 set a high priority to identify areas of contamination and supply safe drinking water and became one of the leaders in addressing the issue, with other states now starting programs. In Europe, through the European Union REACH program (Registration, Evaluation, Authorization, and Restriction of Chemicals), specific controls and implementation dates have been established for immediate action and deadlines set for 2020. C&EN Per-Fluorinated Chemicals Taint Drinking Water, PFAS Response – Taking Action Protecting Michigan,Understanding REACH, EU Restriction of PFOA, Related Substances
PFOS and PFOA, once widely used, are no longer manufactured in the United States. PFAS have an extremely low level of biodegradability, are environmentally persistent, and, as a result, are known as the “forever chemicals.” Scientists are still learning about the health effects, but current studies have shown that certain PFAS may:
Lower a woman’s chance of getting pregnant;
Increase the chance of high blood pressure in pregnant women;
Increase the chance of thyroid disease;
Increase cholesterol levels;
Change immune response; and
Increase the chance of cancer, especially kidney and testicular cancers.
States of emergency have been declared in several communities where high levels have been detected in drinking water. U.S. lawmakers are urging the EPA to regulate these chemicals as a class. Presently, there are more than 4,700 PFAS registered by the Chemical Abstracts Service (CAS), a division of the American Chemical Society, and the health and environmental impacts are known for only a very few. C&EN U.S. Senators Seek Regulation PFASs
Michigan adopted 70 parts per trillion (ppt) as a legally enforceable cleanup level for PFOS or PFOA. However, a federal report, once suppressed by the U.S. military and EPA, proposes a safe daily level of consumption for the two PFAS at one-tenth the current EPA level. The Agency for Toxic Substances & Disease Registry (ATSDR) translated these dose levels to drinking water maximums of 11 ppt for PFOA and 7 ppt for PFOS.C&EN Michigan Declares State of EmergencyC&EN U.S. Report Proposes Lower Safe Limit
The PFAS crisis is an ongoing example of a failure to apply comprehensive risk assessment and management practices and to uphold the Public Trust Doctrine as outlined in the first installment of this risk management series. A crisis developed because commercialization did not wait for the science; human health, drinking water supplies, and environmental protection were compromised. Industry continues to promote the use of the “best available science” in restricting and regulating PFAS. However, the knowledge base on alternatives, toxicology, environmental transport and fate, mitigation, and remediation continues to lag the commercial introduction and use of PFAS. There is a lack of precaution and use of public trust principles to protect public waters.
Risk was introduced in the previous installment as a function of probability and consequence. Probability can be further represented as a function of threat and vulnerability.
Risk = Probability x Consequence
Risk = Threat x Vulnerability x Consequence
Lack of Regulations – PFAS are not yet classified as hazardous materials under air, water, waste, or safe drinking water regulations. PFAS are present and causing problems in all of these media due to a lack of appropriate chemical management and regulatory controls.
Inadequate Toxicology and Ecosystem Threat Information – New PFAS are being identified in the environment and “allowable limits” are under study and debate. “Allowable” drinking water concentrations are extremely low, parts per trillion compared to other hazardous chemicals such as PCBs and chlorinated solvents in parts, which are measured in parts per million and billion; PFAS limits are orders of magnitude lower. This is a crisis requiring a priority and new approaches to mitigate water contaminants at extremely low concentrations that move easily through the environment.
Unidentified Contaminated Sites and Water Bodies – Hot zones are still being discovered. PFAS are found at military airbases, firefighting training facilities, and sites where the compounds were used to fight fires, were and are being manufactured and used to make products, and were disposed of or landfilled.
Lack of Control over Existing Stocks, Inventories – There are unknown quantities of PFAS at fire departments, cleaning and treating businesses, waste disposal operations, and product manufacturers. How are the PFAS being stored, used, disposed of, and replaced? One drum released to surface or groundwater can contaminate an enormous volume of drinking water.
Continued Manufacture and Use – New PFAS materials are being manufactured and used with a lack of information on health and environmental impacts and regulations. There are thousands of PFAS compounds, derivatives, and degradation products with health and safety information known only for a few.
Use of “Best Available Science” for Regulation – New regulation is needed for industry when “best available” is inadequate and a lack of “precaution” has expanded the number of crisis sites and new chemicals introduced to the environment. For example, the commercialization of “GenX” fluoro-surfactant (hexafluoropropylene oxide dimer acid HFPO-DA parent acid) as a partial substitute for PFOS and PFOA was believed to be a safe alternative, but was later discovered also to be toxic. Discharges from the Chemours (formerly DuPont) GenX manufacturing plant near Fayetteville, North Carolina, have contaminated the Cape Fear River and groundwater in the region. Air emissions from the plant have even contaminated rainwater, which, in turn, contaminated groundwater that is not hydraulically connected to the river or groundwater near the plant! Chemours to Pay Fine GenX, EPA Releases Draft Safe Daily GenX Dose,The Fluoro Council
Vulnerability to PFAS
Children are the Most Vulnerable to the effects of PFAS – Exposure is not only from drinking water, but also from swimming in contaminated areas and eating contaminated food.
PFAS Move Easily in Surface and Groundwater – Water analysis takes time and must be done by certified laboratories using expensive equipment (EPA Method 537 Rev 1.1 – Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS). This inhibits quick identification and delineation of hot zones. It is estimated that there are thousands of potentially contaminated sites in Michigan alone. Record Eagle PFAS Plume Confirmed Near School
Human Health Impacts Occur from Long-Term Exposure – Symptoms and warning signs are not immediately evident.
Effectiveness of In-Home Removal Systems – Certain in-home drinking water treatment systems can be used for PFAS, but they are not efficient compared to the removal of other contaminant chemicals. The operating life of activated granular charcoal filters, for example, is shorter because of the low concentration levels (parts per trillion) that must be achieved. In addition, effectiveness has only been tested for a limited number of PFAS. Proper disposal of used filters is an issue to prevent PFAS from reentering the environment.
PFASs are continuing to be introduced into the ecosystem – And PFAS move rapidly through surface and groundwater. Extremely low concentrations have toxic impacts. Millions of people are at risk and others remain in the dark as testing and delineation goes on.
Food Contamination and Consumption Restrictions – Restrictions, especially for eating fish, have been issued at some locations. Health impacts from consumption are speculated, but largely unknown. PFAS bioaccumulate as they move up the food chain.
Water Recreational Use Limitations – Recreational restrictions are being imposed in some areas to avoid direct contact with PFAS foams during swimming and general water recreational activities.
Recommendations – Close the Gaps and Take Stronger Action
Important and additional actions include, but are not limited to, the following:
Government officials must recommit to their primary duty to protect human health and safety, protect the environment, and meet their public trust duties. Accountability for the PFAS crisis is resulting in huge liabilities for both government and private sector entities. Government officials cannot allow continued risk and consequences to the public as the battle ramps up regarding who is responsible and who pays.
Reclassifying the compounds to a higher regulatory risk level will enable stronger action to be taken to protect drinking water, discharges to the environment, remediation activities, and control of manufacturing, use, and storage. Lawmakers have proposed legislation, but actions are slow and PFAS continue to be discharged and spread through the environment.
New regulations under the Toxic Substances Control Act (TSCA) and/or state authority should use a precautionary approachto PFAS manufacturing, use, new chemical approvals and disposal. Use of “best available science” and “predicting toxicity” is not adequately addressing all of the risk elements. Health and the environment continue to be put in jeopardy. The use of best available science only works when the body of knowledge is adequate to determine the full risk to human health and the ecosystem. The current state of knowledge is still far short in understanding risk.
Establish a lower drinking water Maximum Contaminant Level (MCL) for PFAS. A Center for Disease Control (CDC) draft study indicates 7 ppt for PFOS and 11 ppt for PFOA, compared to the federal limit of 70 ppt.
Ensure an adequate number of water testing laboratories are in place with appropriate sample turnaround times.
Rick Kane, FLOW Board Member
Proactively, identify all users and stocks of PFAS and issue interim guidelines on proper handling and disposal. Already, abandoned drums of PFAS have been found in remote locations. Past experience with other hazardous chemicals indicates that illegal disposal and further contamination will occur. Best practices and approved disposal operations must be initiated as soon as possible.
Standards and regulations must be set for PFAS users and disposal operations, possibly starting with “maximum achievable control technology,” until risks have been identified and quantified.
The State of Michigan needs to continue to improve on communications transparency with a timetable, milestones, best practices, and newly identified risks on a statewide mapping system.
This is the first in a series of essays by FLOW board member Rick Kane on the vital issues of risk management and the responsibilities of public officials under the public trust doctrine. The issue has special meaning in light of the risks posed by the twin Enbridge pipelines that convey 23 million gallons of petroleum products through the Straits of Mackinac daily. Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America. He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.
Managing Risk and the Public Trust
Every day, we manage risk in our personal lives and for our families. I wonder what the weather will be like today; what should I wear, or do I need to prepare differently for my trip? There are consequences for not preparing, like getting wet, but the weather forecaster helps by providing the probability for rain and threat of severe weather. We listen, assess the risks, consider alternatives, and make a decision.
Envisioning scenarios, forecasting, and assessing risk are management activities performed in a variety of organizations. If the risks are too high, we take action to reduce them or, better yet, implement an alternative that eliminates the risk entirely. Alternatives analysis is a known but underutilized approach. Too often, organizations reduce risk by making incremental changes and not by using an alternative that could eliminate it. “It is not acceptable to harm people when there are reasonable alternatives - - - - It is not acceptable to harm the environment when there are reasonable alternatives.” In her book, Making Better Environmental Decisions, An Alternative to Risk Assessment, scientist and risk expert Mary O'Brien promotes alternatives - not just accepting risk assessments and incremental risk reduction strategies, i.e. identify and implement risk elimination alternatives.
For the big risks, we depend on elected officials and government regulators to take action in the best interest of public safety, environmental protection and economic interests. The Public Trust Doctrine is an important legal principle that they are required to apply to protect the waters of the Great Lakes. Risk and alternatives assessments are vital inputs needed to reach appropriate decisions under public trust law.
The Public Trust Doctrine holds that government has a solemn obligation to protect the waters of the Great Lakes in perpetuity for public use and enjoyment. The state serves as a trustee and is accountable for managing the waters for the benefit of current and future generations. Any private, public, or commercial existing or proposed use, diversion, or discharge cannot cause harm by materially reducing the flow, changing the levels, or polluting the waters. Those who seek to use, continue to divert, or alter the waters have the burden of proof to show they will not impair, pollute, or cause harm, or the proposed action is not permitted. Under the public trust, the waters can never be controlled by or transferred to private interests for private purposes or gain. Public rights cannot be alienated or subordinated by our governments to special private interests. This means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and paramount public right to public uses are not subordinated or impaired.
For government officials, it is a duty to comply with the Public Trust Doctrine and ensure that the principles are followed. Citizens should understand public trust and hold their elected officials accountable for protecting the waters of the Great Lakes on their behalf and for future generations.
It Takes All Kinds
Growing up in the chemical industry, working in the private, government and non-government sectors taught me that a balance between the sectors is required to obtain feasible and acceptable outcomes. Private companies cannot be relied upon to self-regulate as not all of them have everyone’s best interest in mind. But private sector technical experts are positioned to identify feasible, safer technologies and alternatives. They may also need to be pushed to implement them by shareholders and regulators. Elected officials and government regulators can ensure that the competitive field is level for industry players and that companies are following the rules.
But there are cases where rules go too far, resulting in unintended consequences. Professional societies and standard-setting organizations provide direction to scientists, engineers, and member professionals on ethics and best practices that they should be applying on the job; strong, ethical professionals make strong organizations. And non-government organizations (NGOs) promote public, social, and long-range goals, but there must also be a balance and analysis for unintended consequences.
Taking a systems or macro/micro view is also very important in assessing risk and alternatives. Limiting the boundaries of study or scope prematurely can result in flawed and fatal conclusions. Here is an example that affected a large part of the world.
When Things Go Wrong, and Hindsight Is 20/20
Risk management involves the use of simple to very complex methodologies. However, they all depend on a proper definition of the scope of study, the system, relevant facts, key assumptions, and taking action to fill in important information gaps. Flawed assessments result when the scope of studies are too limited, methodologies are inappropriately modified or faulty, biased assumptions are used. O'Brien’s book provides an excellent overview on where risk assessments can go wrong.
The Daiichi Nuclear Power Plant Disaster was the second worst in history, just behind the April 1986 Chernobyl disaster. We use the Fukushima incident in teaching risk and process safety management. The Daiichi nuclear reactors were located on the Japanese coast and designed to withstand an earthquake and tsunami. The actual earthquake was larger than the safety design basis and the tsunami higher. The earthquake/tsunami triggered a number of failures that all had the same origin, in risk analysis terminology, “a common cause failure” – the earthquake/tsunami.
For safety, the reactors had a “layered or defense-in-depth” design to enable a safe shutdown in emergencies. But:
1st line - electrical supply from off-site to power the cooling water pumps, this supply was lost in the initial earthquake.
2nd line - emergency generators installed with the electrical switchgear in the basement, which flooded along with the generator fuel tanks when the tsunami hit.
3rd line – the battery back-up system did not have enough capacity to enable completion of the shutdown.
And the emergency response was delayed because the company and country thought they could handle the incident on their own and did not want to admit how bad things really were.
In hindsight, the consequences of a nuclear meltdown were known, but could a better assessment have been done for the threat of locating the facility near the coast in an earthquake, tsunami prone area? What about the vulnerability analysis on the emergency shutdown systems and consideration of common cause failures? Was the “worst-case scenario” analysis faulty or biased for some reason? Today, parts of the area are still uninhabitable, although some residents have recently begun to return even when warned that radiation levels are still above safe levels. What next as this disaster continues?
Acceptable risk levels are based on the stakeholder’s tolerance for the risk. For example, for some citizens, an acceptable flood risk might be once every 500 years, while the acceptable risk of a human fatality from an industrial accident might be less than the probability from natural causes, say one in one million.
Risk assessments may be required to comply with federal, state, and/or local laws, insurance company policies, or company procedures. There are ethical principles: you cannot impose risk on someone else, and elected officials and government regulators have a duty to protect constituents and the environment. If you cannot live with a risk because the consequences are too high, then you must identify and implement an acceptable alternative. A Michigan high-risk and controversial example is the Enbridge pipeline.
Here are key terms in risk management:
Risk is a measure of human injury, environmental damage, or economic loss in terms of the likelihood that an incident will occur (probability) and the magnitude of the injury or loss (consequence).
Risk = Probability x Consequence
Probability can be further defined as a function of the threat, an event with the potential to cause loss or damage and the vulnerability, which is any weakness in the system or asset, that can be affected or exploited by accidental, natural, or man-made causes resulting in the harm. Thus, risk can then also be defined as:
Risk = Threat x Vulnerability x Consequence
Toxicological Risk Assessments for human health and living organisms define threat and vulnerability in terms of exposure and dose-response assessments to a harmful substance.
An Exposure assessment covers the most significant sources of environmental exposures, population potentially exposed, and concerns about cumulative or multiple exposures.
For a dose-response assessment, a dose-response curve for the route and level of exposure observed is developed and compared to the expected human or living organism exposure in the environment.
Risk assessments follow a stepwise process and can be a qualitative, judgement-based analysis, or a complex quantitative mathematical analysis.
Scope, System Boundaries, Macro/Micro, and Dynamics- When conducting a risk assessment, the definition of the scope (subject of study), system boundaries, and dynamics are extremely important. Events occurring outside of the boundaries and transitions affect risk. Major risks can be transient and occur during take-off and landing, start-up and shutdown, transition from one physical state to another, movement from one place to another, under certain weather conditions, and so on. AIChE, Center for Chemical Process Safety
The risk assessment process is known as Hazard Identification & Risk Assessment (HIRA, shown below). If the level of risk after one pass is not acceptable, risk reduction measures are added, and the process is repeated until an acceptable level of risk level is achieved; if not, a better alternative is pursued, and the current approach abandoned.
The Enbridge Pipeline - Line 5 Across the State of Michigan
Enbridge’s Line 5 is a 66-year-old pipeline that transports crude oil and natural gas liquids (NGLs) across the State of Michigan from Superior, Wisconsin to Sarnia, Ontario. From Superior to St. Ignace, Michigan, Line 5 is a 30-inch pipeline but divides into two 20-inch pipelines which then pass along the bottom of the Straits of Mackinac and merge back into a 30-inch pipeline west of Mackinaw City to Sarnia. Many studies have been conducted on the 20-inch pipelines at the Straits covering environmental and economic risks, pipeline mechanical integrity, structural modifications, failure modes, and numerous legal issues. And recently, the State of Michigan signed a new agreement for a study on replacing the twin pipelines with a new pipeline and tunnel under the Straits. Information can be found at on the FLOW and Michigan Pipeline Safety Advisory Board websites.
The Streetlight Effect
The streetlight effect, or the drunkard's search principle, is a type of observational bias that occurs when people only search for something where it is easiest to look. Both names refer to a well-known joke:
A policeman sees a drunk man searching for something under a streetlight and asks what the drunk has lost. He says he lost his keys, and they both look under the streetlight together. After a few minutes, the policeman asks if he is sure he lost them here, and the drunk replies no, and that he lost them in the park. The police officer asks why he is searching here, and the drunk replies, "this is where the light is."
The risk analyses have primarily focused on the twin 20-inch pipelines and consequences of a crude oil release. However, the system risk must include the entire pipeline and products transported. The design, fabrication and protection technologies of 30-inch pipelines above and below the Straits are at lower standards than the 20-inch pipelines. There have been at least 29 leaks in Line 5 and a history of ongoing repairs and patching. The replacement of the 30-inch pipeline would be a huge expense and most likely be implemented after a tunnel project is started. The risks and lack of discussion (unknowns to the public outside of the Straits) were previously noted by FLOW. Living Along Enbridge Line 5 in Michigan.In only looking at the problem as being under the Straits, consider the allegory "The Street Light Effect."
A Confined Scope– assessments with scopes that are too narrowly defined restrict the consideration of alternatives and opportunities to eliminate risk. There are continuing strong arguments that feasible alternatives to Line 5 exist and that the pipeline can be decommissioned on a priority basis. This analysis is beyond the scope of this article, but details can be found at: FLOW Alternatives Report 2015
Poor System Definition - system boundaries for Line 5 risk assessments have been limited to the 20-inch pipelines, as this is where the State of Michigan has authority and control over the Mackinac Straits bottomlands, i.e. the system study boundary is being set where there is legal control, not where the full existence of risk occurs. This in turn establishes a crude oil release as the primary threat because the consequences of a natural gas liquids (NGLs), (a mixture of largely propane with some ethane and butane), release would be small in comparison. Thus, this is a legally defined system and not one based on Line 5 system risk to human safety, the ecosystem, and economy. An NGL release poses a major risk to human safety and infrastructure along the entire Line 5 route. The risk is not transparent to the citizens of Michigan (only looking under the streetlight); they are not provided information on known unknowns and a consideration of possible unknown unknowns.
In terms of the risk equation- Risk = Threat x Vulnerability x Consequence
What are the consequences, threats, and vulnerabilities outside of the Straits? For example, the impact of an NGLs leak.
Consequences - Line 5 travels near several populated areas: Ironwood, Manistique, Engadine, Naubinway, St. Ignace, Mackinaw City, Indian River, West Branch, Linwood, Bay City, Vassar, and Marysville, Michigan, and it transports NGLs about 20-30% of the time. NGLs are a liquid under Line 5 operating conditions but would flash into a vapor cloud if a leak occurred. According to the Dynamic Risk Assessment Systems, Inc. study contracted by the Michigan Pipeline Safety Advisory Board (MPSAB), a large underwater release under the Straits could create a flame envelope of just under one mile. But what if you are living or traveling near Line 5 upstream or downstream of the Straits? A ground level release and fireball could be much larger as the pipeline pressure is higher and distance between emergency shutoff valves greater.
For a crude oil release, Line 5 crosses nearly 400 streams and wetlands and runs near many other sensitive public and environmental areas. Studies conducted for the state designate 74 water-crossing locations as “prioritized,” indicating sensitive areas vulnerable to a spill and including endangered species habitats and sites near drinking-water intake pipes. Some of the waterways include the renowned AuSable, Sturgeon, Manistique, and Rapid rivers, and the Upper Peninsula’s Lake Gogebic.
Defining the system in terms of legally controlled boundaries results in the risk to areas outside of the Straits being overlooked. In addition, the December 2018 Enbridge-State agreement enables threat to continue until at least 2024 as tunnel studies are conducted, and beyond if a tunnel project is launched. Meanwhile, the threats outside of the Straits continue.
Vulnerability to failures outside of the Straits have many known unknowns and possible unknown unknowns due to different operating conditions, design and maintenance and inspection programs, and environmental exposure conditions. For the public, there should be many questions, but unfortunately, with the focus on only the Straits, under the street light, citizens do not know that they should be asking safety questions.
Here Are Some Starting Questions
What are the risks for a release upstream or downstream of the Straits, especially for NGLs? What is the safety risk to populated areas from a fireball and the lakes and rivers to a crude oil spill? What are the plans to mitigate the risks now, with and without a tunnel project?
Rick Kane, FLOW Board Member
Based on the agreement signed by the State, current operations at the Straits can continue to 2024 and beyond with minimal additional monitoring and on-site emergency response. Why are “extraordinary” emergency response measures not required to counter the extreme consequences that would occur at the Straits? This is a normal requirement in other high consequence, non-mitigated risk situations.
What are the plans for the entire pipeline system, especially outside of the Straits where the design and mechanical integrity is known to be less than at the Straits? Should citizens expect a segment by segment replacement as was done on Line 6B/78 in southern Michigan?
PFAS (per- and polyfluoroalkyl substances) are driving Michigan’s latest surface and groundwater crisis, infiltrating public waters with what the media and others describe as “emerging” contaminants. It turns out, however, that this class of persistent fluorinated chemicals, known as “forever” chemicals due to their extraordinarily strong bonds, is anything but emergent.
In fact, the responsible chemical manufacturers (DuPont, 3M, and six others), U.S. Environmental Protection Agency (EPA), and U.S. Department of Defense (DOD) have known for decades about the toxicity of PFAS, adverse health effects on humans and the environment, and persistent nature of this family of 5,000+ chemicals. In 2017, the Pentagon identified 401 military sites with known or potential releases of these chemicals.
Complex litigation and class action lawsuits now decades old involving former DuPont employees, 3M, and other manufacturers established causation and linked adverse human impacts to known scientific toxicological effects. Just watch the film The Devil We Know for a gut-wrenching look at what happens to animals, humans, families, and communities poisoned by PFAS contamination when chemical manufacturers and regulatory agencies duplicitously cooperate, ignore science, and continue to produce these chemicals that are ubiquitously found in our food, bodies, drinking water, clothes, and other consumer products sold around the globe.
The most commonly known PFAS-containing household products include Scotchgard®, Teflon®, and Gore-Tex®. PFAS chemicals can be found just about everywhere on the planet, including in mammals in remote Arctic regions. How vast a problem is this? Vast and unprecedented. “An estimated five million to 10 million people in the United States may be drinking water laced with high levels of the chemicals,” according to the New York Times. And an alarming ninety-eight percent of Americans are estimated to have some level of these fluorinated chemicals in their blood.
In 2016, the EPA set a non-enforceable health advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS) levels in drinking water at a combined 70 parts per trillion (ppt). The Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry, however, have stated repeatedly that exposure to even lower concentrations may pose health risks. Despite all that we know, in 2019 Americans still have no federal drinking water standard and no federal cleanup standard to protect communities from harmful health effects from these forever chemicals.
At the State Level
Without federal leadership to set drinking water and cleanup standards, and Superfund polluter liability, the states have to fend for themselves to address a nationwide crisis affecting everything from food, drinking water, wastewater, public health, wildlife, commercial household products, and industry processes. States including Colorado, Minnesota, Michigan, New Jersey, New Mexico, Texas, Vermont, and Washington have or are in the process of developing policies to regulate drinking water and cleanup for this class of toxic chemicals. And another 11 states—Alabama, California, Illinois, Massachusetts, Mississippi, Montana, New Hampshire, New York, North Carolina, Pennsylvania, and Wisconsin—are considering following suit, according to Bloomberg Environment analysis (check out Safer States’ bill tracker to see what’s happening in your state).
In Michigan, DEQ scientist Robert Delaney warned the state about the PFAS health crisis as early as 2012 in a seminal report that was largely ignored. That same year, the Michigan Department of Health and Human Services issued a “Do Not Eat” fish advisory near the former Wurtsmith Air Force Base. Given that these chemicals can bioaccumulate in aquatic ecosystems resulting in higher levels in fish tissue, Michigan issued a health advisory for surface waters at 11 to 12 ppt.
With the discovery of PFAS at Wurtsmith Air Force Base and post-Flint crisis, the State of Michigan launched the Michigan PFAS Action Response Team (MPART) in 2017 to investigate the drinking water systems, wastewater treatment plants, schools, and landfills across the state. The more the State of Michigan looked, the more PFAS-contaminated sites have been found.
In January 2018, the DEQ issued an emergency clean-up standard at 70 parts per trillion (ppt) in groundwater used for drinking water in Michigan. To date, the State of Michigan has tested 1,400 community water systems, and 90 percent of them have no detectable PFA levels. The 10 percent, however, are a significant concern. An executive order signed by Governor Gretchen Whitmer strengthened MPART(the Michigan PFAS Action Response Team) so that it can efficiently inform the public about toxic contamination threats, locate additional PFAS contamination zones, and take action on behalf of Michigan residents, notably by protecting their drinking water supplies from the family of chemicals.
But more needs to be done. Now.
State attorneys general, for example, need to further collaborate and take leadership in building a nationwide coalition to initiate litigation and demand federal agency action for drinking water and cleanup standards. In 2018, Minnesota’s Attorney General won an $850 million settlement with 3M, a manufacturer of perfluorinated chemicals (PFCs).
Where Things Stand
EPA’s recent release of a PFAS Action Plan is the latest example of government foot dragging in the extreme. The plan appears designed to slow the federal response and shift the burden to the states to set their own standards.
On March 1, Michigan’s U.S. Senators Gary Peters and Debbie Stabenow, along with ten other Senators, introduced legislation to regulate PFAS as a “hazardous substance” under the Comprehensive Environmental Response, Compensation, and Liability Act, also known also as CERCLA or Superfund. Under the bill, the EPA would have regulatory enforcement powers over PFAS and could require polluters to pay for PFAS groundwater contamination and clean up. U.S. Representative Debbie Dingell introduced identical legislation in the House (HB 545). On March 5, Governor Whitmer issued a supplemental budget request for $120 million in clean water funds, including $30 million for PFAS research and clean up.
Liz Kirkwood, Executive Director
With a family of 5,000 chemicals infused in everything from clothes to household products to manufacturing, federal and state toxicologists and risk experts are working hard to understand and evaluate the science of exposure and health impacts, and to determine what standards define an acceptable risk. In Michigan, leading toxicologists include among others Dr. Rick Rediske, Carol Miller, Rita Loch-Caruso, Courtney Carignan, and Steve Safferman. Their findings are critical to informing and resolving current state and federal policy debates on safe drinking water and clean up levels.
This latest surface and groundwater crisis is a reminder of how interconnected we are, how vulnerable the water cycle is, and how national chemical policy reform is urgently needed to protect human health and the environment before chemicals are put into commerce and adversely contact with human and the natural environment.
After last year’s election, newly chosen leaders and the old guard with a few weeks left in Lansing rushed in opposite directions. The Snyder administration and legislators intensified their unprecedented, legally questionable attacks on water, the environment, and public health during a lame-duck feeding frenzy.
The new guard, Governor Gretchen Whitmer and Attorney General Dana Nessel, meanwhile formed transition teams and appointed cabinet members, new department heads, and staff to reestablish Michigan’s constitutional mandate that the state shall protect the paramount public concern in the Great Lakes, groundwater, and public health from pollution and harm arising out of water crises like statewide PFAS surface and well water contamination, Detroit drinking water shutoffs, lead and Legionnaire’s Disease in Flint water, and the Enbridge Line 5 oil pipelines in the Straits of Mackinac.
The combination of these crises manifests a far deeper crisis in state government—a breach of trust in the oath of office of state officials to uphold the constitution and rule of law. State leaders under the Snyder Administration and many elected officials deliberately ignored the constitutional and legal mandates and instead chose to serve special private interests.
FLOW’s Commitment: Protecting Public Waters from Pollution and Private Control
Here at FLOW, we are increasing our efforts and projects to protect the paramount public trust concern in water, the environment, and public health through our Campaign for Fresh Water launched last fall. One of these projects is to bring an end to the high risk of extreme damage to the Great Lakes, tribal fishing, drinking water, property, businesses, citizens, and Michigan’s economy from the continued operation of the decaying, 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
FLOW has redoubled our efforts in concert with a large public outcry and movement to decommission or end Line 5, collaborating with Oil & Water Don’t Mix and many local and statewide environmental groups, like National Wildlife Federation and Groundwork Center, individuals, families, businesses, communities, elected officials, and the leadership and legal challenges brought by Michigan’s Indian tribes with treaty rights in the Straits, Straits of Mackinac Alliance, and the City of Mackinac Island.
The former Snyder Administration and state environmental and natural resource agencies, former Attorney General Schuette, and a core of pro-Enbridge legislators in a flurry of agreements, laws, and actions, suspended the state Constitution and rule of law to convey and appropriate public trust lands and waters for Enbridge to build a private oil tunnel for a new Line 5 in the Straits of Mackinac for another 99 years. Worse, these state officials and leaders purported to guarantee Enbridge to keep operating and using Great Lakes bottomlands for its dangerous existing Line 5 for another 10 years—without the required authorization and occupancy or use agreements required by the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law.
This is the year of reckoning for Enbridge’s Line 5. It is time to unpack and nullify the unilateral deals made with Enbridge by the Snyder administration and confirmed by the legislature without following the constitution and rule of law. The administration and legislature signed off on a covert deal that would let Enbridge Energy continue pumping 540,000 barrels of oil a day (bbl/day; 1 barrel equals 42 U.S. gallons) through the dual lines laid in 1953 in the Straits and Great Lakes with a catastrophic worse-case damage scenario in the tens of billions of dollars. Unaccountably, the administration and legislature did so despite Great Lakes law in Michigan that prohibits the transfer or occupancy of the state-owned waters and the soils beneath them for private purposes.
Reward for Failure: After Enbridge’s 2010 Kalamazoo Pipeline Disaster, Michigan Officials Doubled Enbridge’s Oil Pumping across Michigan, and then Locked in an Oil Tunnel Deal for 99 Years
How is it that the State ended up rewarding Enbridge for a spill from Line 6B of a million gallons of crude oil and billions of dollars of damage to the Kalamazoo River system? While the State worked with Enbridge to address the damage from its unprecedented 2010 spill, it granted Enbridge a gigantic windfall by incrementally approving, from 2012 to the present, the doubling of Enbridge’s pipeline capacity and oil transport through the Great Lakes. In effect, while Canadians continued to block pipeline projects to transport crude oil to the country’s coasts, and citizens in the U.S. derailed the Keystone XL in the West, the Snyder Administration and former Attorney General Schuette orchestrated a “Great Lakes XL” that is even larger.
And then in 2018, Snyder, in his term’s waning months, and the lame-duck legislature gave away and endangered the Great Lakes to Enbridge, by locking in a 99-year sweetheart deal for Enbridge to build an oil tunnel to convey Line 5 under the Straits and granting Enbridge the cover to keep operating the existing failing Line 5 that threatens tens of billions in damages. On top of this deal, the Administration totally failed to even consider climate change impacts and risks and the rapid shift toward the new renewable energy economy that will leave the state with a billion-dollar dinosaur.
Here’s how the calculated actions of Snyder, Schuette, and their cohorts bypassed legal requirements in seven sweeping steps, along with some advice from FLOW to Michigan’s new leadership at the start of their journey to reestablish the rule of law and rollback the mess:
Bit by Bit, Doubling the Oil Flow on Line 6b after Enbridge’s Kalamazoo River Disaster
First, from approximately 2011 to 2014, the Michigan Public Service Commission (MPSC) approved a series of Enbridge applications to replace short segments, rather than a single application to replace the whole portion, that had the effect of doubling the design capacity of most of Line 6b pipeline from 400,000 to 800,000 barrels (bbl)/day. Allowing the MPSC to review shorter pipeline segments avoided the alternative analysis on the entire Line 6b from Indiana to Sarnia, Canada.
MPSC rules and decisions, and Michigan’s environmental laws, require a review of likely impacts and alternatives to the entire length of the pipeline. Had this rule been followed, the MPSC would have been required to look at all of the Enbridge lines in Michigan, and determine the overall needs of the public necessity and needs of the company, short and long term, and the alternative or best route or location that would best meet that need with the least impact and risk to water, environment, and communities. That would have included a review of the need for Line 5, including the risks to the Straits of Mackinac and Great Lakes. It also would have required a consideration of the future need for crude oil through Enbridge’s system in Michigan in light of falling crude oil demands caused by the rapid and imminent shift to renewable energy to reduce the effects of climate change.
Increasing Line 5’s Oil Flow in the Straits by 80 Percent
Second, during the same time frame, the MPSC approved the location and installation of new and changed pump stations and anti-friction fluid injection facilities for Line 5, including the Straits segment, so Enbridge could implement its final increment to result in the increase the oil transport capacity of Line 5 from 300,000 to 540,0000 bbl/day. Again, the MPSC did not evaluate the need, impacts, risks, or alternatives to this overall 80-percent increase in flow volume of crude oil. Once more, the State allowed Enbridge to avoid the law that required a full evaluation of the purpose. Had the rule of law been followed in the doubled Line 6B and expanded flow volume in Line 5, the State through proper notice, public input, and evidence would have been required to look at overall impacts, risks, and alternatives and need for the Enbridge system, and Line 5 could have been decommissioned in an orderly manner in exchange for the doubling of Line 6B.
Saddling, Elevating, and Damaging Line 5 in the Straits
Third, although not disclosed by Enbridge until 2016, Enbridge installed saddle supports screwed into the lakebed to support a failing design of Line 5 in the Straits. The original design specified in the 1953 easement and built in the Straits called for the heavy steel dual lines in the Straits segment to be laid on the bottom on the lakebed. If wave action and currents scoured more than 75 feet of soils beneath a segment of the pipes, the company was required to stabilize the line by closing the existence of the spans.
While not disclosed until 15 years later, when filling or grout bags failed, Enbridge in 2001 started installing saddle supports screwed into the lakebed to elevate the heavy dual pipes above the lakebed. Initially, there were 16 supports, more and more were added, and between 2016 and 2018, the Michigan Department of Environmental Quality (DEQ) permitted Enbridge to install more than 70 saddle supports, bringing the total to 200 supports, which has resulted in a suspension of three miles of an aged line above the lakebed.
The DEQ shrouded Enbridge’s failing Line 5 risks and redesign by characterizing the supports as a “repair” and “maintenance.” This not only covered up the redesign but confined the legally required impact and alternative analysis to a 50-foot radius of lakebed around each support. As a result, the DEQ ignored and allowed Enbridge to escape the comprehensive review of potential impacts and alternatives to the failing condition of the outdated line required by the Great Lakes Submerged Lands Act.
In addition, Enbridge’s installation of the saddles has damaged Line 5’s anti-corrosion protective coating, a fact that the company hid from Michigan officials for three years during its negotiations to install additional anchor supports.
Signing Side Deals for Another 99 Years of Line 5 in the Straits
Fourth, Governor Snyder, DEQ and the Department of Natural Resources (DNR) signed two agreements with Enbridge between October and the end of December 2018 that purported to transfer state public trust bottomlands and soils of the Straits so Enbridge can build a tunnel for a new 99-year pipeline. The tunnel and new line will take 10 years or more to construct. Until the new line is operating, Enbridge is authorized to continue operating the failing design of the existing aged line.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses.
Under the GLSLA, easements, leases, uses, or improvements on, in, under the state-owned public trust soils of the Great Lakes are prohibited unless authorized within two narrow exceptions: (1) it is for a public purpose, related to navigation, boating, fishing, swimming, or drinking water; and (2) it will not threaten an impairment of the public trust in the waters, soils, or these public trust uses. The two agreements that commit leasing, easements, or use of waters and soils beneath the Straits do not require Enbridge to obtain authorization or findings under the GLSLA. In other words, the Governor and his agencies agreed to transfer state public trust lands for the tunnel and the private 99-year new line, and at the same time allow the continued use of public bottomlands for the existing line, without obtaining the authorization required by law.
Ramming through a New Law to Transfer State Public Lands to Canada’s Enbridge without Proper Authorization
Fifth, when the Legislature ram-rodded the passage of Public Act 359 and Governor Snyder signed it into law in late December, they created a corridor authority to sign the tunnel agreement, easements, leases and other commitments for Canadian-based Enbridge to take over the public’s state-owned waters and soils and build the tunnel and its new pipeline. On its face, Act 359 transfers or commits to the authority these state public trust bottomlands without requiring authorization of the conveyance under the GLSLA. Under U.S. Supreme Court and Michigan Supreme Court decisions, any disposition, occupancy, or use must obtain authorization based on findings of no private purpose and no impairment of waters, soils, fishing, navigation or other public rights. Otherwise, it is prohibited.
Bypassing State Law and Alternatives to Risking the Great Lakes
Sixth, the easement for a public utility, after approval by the MPSC, such as the tunnel or the 99-year lease, or the continued operation of the existing Line 5 in the Straits, must be obtained from the state DNR in addition to the authorization under the Great Lakes Submerged Lands Act. Because the easements involve public trust bottomlands, they cannot be granted unless authorized by the GLSLA or unless based on the standards of the common law of public trust, which requires the comprehensive review of potential impacts and alternatives to the total or substantial change of the outdated dual lines in the soils and open waters of the Great Lakes.
Appropriating Public Property for Enbridge’s Private Purpose
Seventh, the Michigan Constitution, Art IV, Sec. 30, prohibits the appropriation of public property of the State for private or local purposes. An appropriation occurs where the disposition or transfer of state property, like the public trust waters and soils of the Great Lakes, is granted without findings or full and fair compensation—that is, where the transfer is for free, little consideration, or less than the full public trust value of these waters and soils.
In short, our former Governor, DEQ and DNR Directors, the MPSC, and former Attorney General suspended wholesale the rule of law for the benefit of Enbridge’s massive increase in the volume of crude oil through our Great Lakes State for private gain.
Restoring the Rule of Law and the Paramount Place of the Water and the Great Lakes in Michigan’s Future Prosperity
The first order of business for our new leaders—Governor Whitmer and Attorney General Nessel—is to restore the rule of law on Line 5 in Michigan, and they are off to a good start. The high risks and more than $6 billion catastrophe from a release of crude oil in the Great Lakes and an estimated additional $45 billion in damage to shipping, steel production, and jobs are unacceptable by any sane measure.
The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Governor Whitmer should direct her new directors of the DEQ and DNR and Attorney General Nessel should direct her lead attorneys on Line 5 and the Great Lakes to conduct a thorough and careful review and reevaluation of the Snyder Administration’s and former Attorney General Schuette’s failure to follow the public trust, GLSLA, and Michigan Constitution in the handling of the entire Enbridge Line 5 controversy.
Buoyed by the work of so many organizations, tribes, communities, individuals and families, and the majority of citizens who elected them, the Governor and Attorney General Nessel and their administrations have a mandate and opportunity to restore water, environment, and public health as paramount in Michigan. The public deserves better, the law and state Constitution demand it, and we applaud and urge on the governor and attorney general’s steps to bring Line 5 to a prompt and orderly decommissioning and closure.
Jim Olson, President and Founder
Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.
Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.
Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.
Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.
At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.
Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.
When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.
The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.
Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.
This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the  Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the  Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.
Jim Olson, President and Legal Advisor
So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.
Today marks the beginning of a campaign to protect groundwater in Michigan and our surrounding states as the “Sixth Great Lake,” a lightning-bolt phrase promoted by Dave Dempsey, FLOW’s senior policy advisor and author of a sentinel groundwater report released by FLOW this week. In this second of a trilogy of reports published by FLOW as part of its “Campaign for Freshwater,” Mr. Dempsey, a highly regarded sage in Great Lakes and international water policy circles, has summoned citizens, leaders, communities: Now is time to reverse the course of an abysmal history of our state government’s deliberate collaboration with polluters to put private interests above the paramount public interest in water and public health.
Our Great Lakes and the tributary lakes, streams, and groundwater, are owned by each state as sovereign, in public trust our laws exclaim. Our waters of the state are public and held in trust to prevent diminishment and pollution of water and protect public health. This same legal principle is embodied in Michigan’s state constitution and water laws. In Article 4, Section 52, the constitution declares that the public interest in water and natural resources is paramount and that the “legislature shall provide” for their protection from pollution or impairment. In Article 4, Section 51, the constitution declared that the directly related public interest in health is paramount and directed that the “legislature shall provide” for the protection of public health. In 1970, our legislature responded to this constitutional mandate by passing the Michigan Environmental Protection Act, a law that imposes a legal duty on government and all of us alike to prevent the likely degradation of our water, air, and natural resources and the public trust duty to protect the public’s use and dependence on these resources.
After the tragic exposure and horrible health effects from toxic chemicals underneath “Love Canal”– Hooker Chemical’s sale of a bulldozed, covered-over hazardous waste dump for a residential subdivision, Michigan like the country and other states acted to halt the poisoning of our water, land, and citizens. In 1980, Congress passed the federal Superfund law that imposed strict liability on those who owned or controlled land on which hazardous chemicals had been or were being released. Michigan passed the Michigan Environmental Response Act (so called “Act 307″ or “MERA”) in 1982. Act 307 declared that all persons or companies who were “owners” of the land or “operators” in control of the land on which a release of toxic chemicals had to report and enter into consent orders to remediate the pollution of groundwater contaminated by the release.
This historic and remedial action by our country’s elected leaders established a legal principle and rallying-cry to stop the poisoning of the United States and our environment, and the tragic loss of life and health of our citizens. In Michigan and other Greet Lakes states also passed “polluters’ pay” laws that imposed strict liability for control or ownership of a facility from which a release of chemicals had been released. This was the mainstay of Michigan’s efforts to clean up hazardous substances from our lands and groundwater, that is until Michigan’s legislature passed and Governor Engler signed Act 451 (“Part 201) in 1994. Act 451 punctured holes in the law, and from 1994 until now our elected leaders and appointed officials have insidiously commandeered the dismantling of polluters’ pay law and dried up the budget to enforce what little of the law remained. Today, it should be called “Polluters Play.”
In 1995, under the watch of Governor Engler, the legislature revamped Act 307 to narrow liability of “owners or operators” from strict liability for owning or controlling a contaminated property to “owners or operators” who “at the time of the release” are shown to be “responsible for causing the release.” The state ended up with the burden of proof to showing causation, not those who own or are in control of the property, and cleanup standards were relaxed from a 1 in 100,000,000 cancer risk to a 1 in 100,000 risk. Pollution from pesticides and fertilizers in the production of food, crops, and concentrated farms were exempted as long as they managed runoff and groundwater discharges based on generally accepted farming practices.
From 1999 to 2014, cleanup standards were relaxed even more, where owners and operators obtained an approved plan to manage the contamination in place under “no-further action” plans and post-closure management monitoring, and land and water use restrictions that limited exposure of people to the hazardous substances in soil or groundwater. In short, polluters can isolate a land area and groundwater plume and monitor contaminant levels as they spread, adding more restrictions as necessary: This means groundwater use by the public or other landowners is lost until levels drop below clean up or unrestricted residential use standards. Then on top of this, cleanup standards were relaxed where the use of land or underlying contaminated groundwater were in an industrial or commercial zone where there was little chance of human exposure. At first these changes were supposed to help the redevelopment of “brownfield sites” (polluted property or groundwater) throughout the state to increase property tax revenues. But these standards were extended across the board to all polluters, tax revenues remained depressed while developers were reimbursed cleanup costs from tax incremental financing– as redevelopment occurs, value goes up so tax revenues go up, minus the tens of thousands or sometimes millions of cleanup costs to the developer until paid.
In the past few years under Governor Snyder’s watch, things have turned even darker. Owners of land or facilities with groundwater levels in excess of legal contaminant standards or cleanup standards are allowed to “vent” to nearby surface water streams. This means, high levels of contaminants can remain in the groundwater until migration enters a stream without violating water quality standards. Because of the larger volume of flow moving quickly downstream, “dilution is the solution.”
For many citizens in Michigan, this legacy to our water and public health is and will continue to be shocking as we discover more and more toxic sites, like the growing PFAs crisis first discovered in Parchment, Michigan that shut down a town’s drinking water supply. Shamefully, it is not and won’t be shocking to the majority of our legislators and leaders who commandeered these changes to let polluters off the hook or narrow the range or amount of costs they would have had to pay to clean up groundwater so that it was no longer polluted. As pointed out by Mr. Dempsey in FLOW’s report, Michigan still has over 6,000 unfunded sites that exceed cleanup standards and more than 8,000 sites from leaking underground tanks. Thousands of so-called post-closure hazardous sites are managed by agreements and land or water use restrictions to reduce human exposure. This means this toxic groundwater legacy continues to spread and displace these waters from available for public or private use. Worse, this legacy endangers the health and well-being of tens of thousands of citizens and hundreds of communities.
There is a disturbing sidebar in FLOW’s report, captioned as a “Spreading Stain.” The sidebar captures both the magnitude and gravity of our current groundwater crisis– a legacy of pollution, nitrates, and now PFAs–in Michigan and the Great Lakes Basin. In the town of Mancelona, up slope from Antrim County’s Chain-o-Lakes, the Jordan River Valley and Schuss Mountain Ski Resort, from the 1940s through the 1960s, an auto parts manufacturer used a solvent known as TCE (trichloroethylene) to degrease its stamping machinery. The used solvent was dumped on the ground or discharged into lagoons. By the time, the company was out of business and the EPA and Michigan’s Department of Environmental Quality discovered the contamination, the plume had spread out 6 miles long and 1.5 miles wide. It endangers streams and the drinking water of the residents of the town and resort. But what is often lost on our leaders and the public is the fact that 13 trillion gallons of groundwater are no longer available for use by the town, the resort, businesses, and property owners. To put this in perspective, Dempsey notes this is ten times the loss of the 2 billion gallons a day from the Chicago diversion of Lake Michigan to the Mississippi.
Multiply this by the thousands of contaminated groundwater sites in Michigan, and the picture is clear: The public waters of the state and Great Lakes basin have been sacrificed and subordinated by private interests. This massive loss of water is even memorialized by the state’s requirement that private polluters and towns zone or restrict use of use of groundwater within the area of a toxic plume, rather than clean it up. Water quality and quantity issues are inseparable. How is the state has joined the Great Lakes Compact that bans diversion of millions of gallons of water, but has been complicit in allowing the loss of trillions of gallons of groundwater by aiding the spread of toxic pollution?
How ironic. Our courts have declared water as sovereign and public, but the state allows large volumes and areas of groundwater to be placed off limits to benefit private polluters. Could the state have designated 1,000 acres of our public forests and state parks as a toxic waste dump for private use? Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Our constitution mandates that our legislators and leaders shall protect the paramount waters of the state and public health. Since 1995, legislators have enacted and governors have signed a parade of laws and regulations that have destroyed groundwater, poisoned drinking water, and endangered public health.
Jim Olson, President and Founder
Maybe we should start by restoring the “polluters’ pay” law, but this time call it “polluters and politicians pay.” The law would read, “the owners or operators or legislators who voted for the laws that violated the constitutional legislative mandates to protect water and public health are strictly liable for the cost of cleanup and damage from the release of toxic pollutants.” Let’s restore the paramount (“above all”) protection of water and health required by the common law of public trust and the state constitution.
In 1962, with the release of her seminal work, Silent Spring, Rachel Carson sounded a warning to the American public about the perils of persistent pesticide chemicals like DDT to silence the very ecosystems they attempt to tame. Carson’s story underscored the interconnectedness of all living things and systems and the need to understand the full life cycle of biocides and other chemicals in order to truly protect human health and the environment.
Despite Carson’s work and subsequent congressional toxic chemical legislation, every year, chemical manufacturers release some 10,000 untested chemicals into the environment in the United States. How can this be?
Several weeks ago, I met a professor of environmental toxicology and spoke with him at length about Michigan’s latest emergency drinking water crisis involving a different chemical of concern: per- and polyflouroalkyl substances (PFAS). PFAS are an emerging contaminant of concern because of their widespread use and persistence in the environment, having been commonly used in firefighting foam, water resistant fabrics, nonstick surfaces, stain guards and other commercial and industrial applications. According to recent reporting, there are an estimated 11,000 sites with PFAS contamination affecting a potential 1.5 million citizens in Michigan.
This professor boiled down the problem right back to Rachel Carson’s work, explaining that DDT was in the chlorine family. Once the public and policymakers raised the alarm bells about this chemical family in the 1960s, the chemists simply moved over to the next element – fluorine – and started developing a host of water repellent compounds for commercial and residential use without understanding the public health and environmental impacts once again.
Michiganders now are demanding answers again from their state government that has failed to warn and protect its citizens. Now that the public is clamoring for action, state and federal agencies are finding PFAS in many places. The public water supply of the City of Parchment was found to be contaminated at unacceptable levels, and customers were warned not to use it temporarily. Private well owners near a Wolverine Worldwide shoe manufacturing facility in Kent County have had to seek alternate water supplies. PFAS have also shown up in some school drinking water supplies and in surface waters near Wurtsmith Air Force base.
As early as 2012, DEQ scientists warned administrators about PFAS and their persistence in the environment, and yet, the department failed to take any action putting people and the environment first.
Sadly, this is not Michigan’s first chemical rodeo show. Yet, our state leaders and agencies continue to follow the same playbook: identify the toxic chemical, tell people not to drink the water, scrape up some funding to clean up some contamination sites, and then finally fund the science to determine what a “safe” level is. The State of Michigan needs to do all these things for PFAS, but we need to do a lot, lot more.
First, the PFAS fiasco is a failure of state government to heed the constitutional mandate to protect public health — the executive and legislative branches both. As in the case of Flint’s lead poisoning, experts warned state officials of a threat, and the officials dismissed it. Moreover, over 20 years ago in 1995, the legislature exposed the public to persistent PFAS threats by weakening liability and increasing the allowable cancer risk.
Liz Kirkwood, Executive Director
Second, the PFAS fiasco is a canary in the policy coal mine. It’s a warning and a reminder that our economy and environment are engulfed in a bath of chemicals, many of whose risks are unknown. The public trust doctrine forbids the impairment of water-related uses, but as long as our chemical policy is founded in ignorance, we are breaching the doctrine hundreds of times over. It’s time to right the wrong and protect the public trust — and health.