Tag: Public Trust

Comment by Oct. 19 on Permits for Risky Line 5 Oil Tunnel

Published on October 14th, 2020 by - Blog Posts

enbridges-line-5-under-the-straits-of-mackinac

On Monday, October 19, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will conclude its public comment period on pending state permits for the expected wetland and wastewater impacts, and alternatives to constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The proposed tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to submit comments. Many people and groups, including FLOW and Oil & Water Don’t Mix, already have expressed deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life. 

Below is guidance from FLOW on what to include in your written comments and how to submit them online by Monday’s deadline. EGLE expects to issue its final decision on the oil tunnel permits and for wastewater impacts in late November and impacts to wetlands and submerged lands in early December.

Points to Make in Public Comments by Oct. 19

FLOW is providing this content for you to draw from and supplement with your own information and perspective in your comment to EGLE on the proposed Line 5 tunnel permits:

  • Not authorized by the state — EGLE cannot properly proceed on administering the Enbridge permit applications unless and until the December 2018 Easement and tunnel lease have been authorized under sections 2 and 3 of the Great Lakes Submerged Lands Act and the Public Trust Doctrine.
  • Not good for the climate or Gov. Whitmer’s goals  — EGLE must take into account the lifetime greenhouse gas emissions attributable to the proposed petroleum tunnel, particularly in light of Governor Whitmer’s Executive Directive 2020-10 setting a goal of economy-wide carbon neutrality by 2050. Extending the life of Line 5 for the next 99 years with  the tunnel project is fundamentally at odds with the reduction of greenhouse gases necessary to avoid the most catastrophic effects of climate change.
  • Not good for public health, safety, and welfare — EGLE is required to determine whether extending the life of an oil pipeline that will emit approximately tens of  million tons of greenhouse gases annually for the next 99 years, under the state Natural Resources and Environmental Protection Act, “is consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction.”
  • Not a public need for the oil tunnel — EGLE must make a number of specific determinations, including whether the benefits of the project outweigh reasonably foreseeable detriments, the extent to which there is a public and private need for the project, and whether there are feasible and prudent alternatives to the tunnel project. Unless these determinations are clearly demonstrated by the applicant Enbridge, the permit is prohibited by the Michigan Environmental Protection Act and the Wetlands Protection Act.

How to Submit Your Comments to EGLE by Oct. 19

Be sure to submit your comments on Enbridge’s proposed Line 5 oil tunnel by the Monday, Oct. 19 deadline. The public can submit comments either by email to EGLE-Enbridge-Comments@Michigan.gov — referencing Application Number HNY-NHX4-FSR2Q — or via two EGLE web pages for commenting separately on each of the permits. Click on each link below and follow the instructions provided by the state:  

  • EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
  • EGLE public comment page for National Pollutant Discharge Elimination System (NPDES) wastewater impacts.

How to Learn More about Line 5 and the Risky Oil Tunnel

To learn more about Enbridge Line 5 and the proposed oil tunnel, see these resources on FLOW’s website:

Thank you for speaking up for the Great Lakes, drinking water, and a way of life here in the Great Lakes State!

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

Published on March 5th, 2020 by - Blog Posts, News, Reports & Media Releases

FOR IMMEDIATE RELEASE:                                                                                                   March 5, 2020

Jim Olson, Founder and President                                                             Email: Jim@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                                     Web: ForLoveofWater.org
Cell: (231) 499-8831                                                                                             FLOW Office: (231) 944-1568

FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel

Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law

FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.

The Corridor Authority, which is housed in the Michigan Department of Transportation, will meet Friday, March 6, at 10 a.m. in St. Ignace to discuss past and ongoing planning for the location and construction of the oil tunnel and new pipeline in the state public trust soils beneath the waters of the Great Lakes—the Straits of Mackinac.

The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” said FLOW Founder and President Jim Olson.

“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”

The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.

The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.

FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.

For more information, see FLOW’s:

Chronicling FLOW’s Accomplishments in 2019

Published on December 27th, 2019 by - Blog Posts, News

Powered by our supporters, FLOW had quite a year in 2019.

Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.

On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.

“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”

Meanwhile, a bill has been introduced in Lansing by Rep. Yousef Rabhi that extends public trust protection to groundwater and mandates that the state protect that water.

Our work has had a national impact as well. In February, the United States Supreme Court reaffirmed that we have a public trust right to walk the Great Lakes shorelines below the natural high water mark of private property, when it declined to hear an Indiana case filed by riparian land owners. Jim Olson was involved in the original case.

 

Education and protective policy

FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.

We advocated for several protective policies in 2019, including a two-pronged proposal to the International Joint Commission (IJC) for an emergency pilot study and urgent action to address the effects of climate change on the Great Lakes, the inclusion of funding for clean water in Michigan Governor Gretchen Whitmer’s budget, and the need for statewide requirements for septic system inspection, particularly given that Michigan is the only state in the nation without any statewide septic code.

The International Joint Commission, which held a public hearing in Traverse City on July 24, also appointed FLOW executive director Liz Kirkwood to its Great Lakes Water Quality Board.

“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”

FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.

 

Celebrating water

FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”

On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”

On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.

After all, protecting the Great Lakes is “A Matter of the Heart” writes FLOW supporter Jerry Beasley:

“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”

Beach Cleanups Protect Water and Health and Raise Awareness

Published on July 24th, 2019 by - Blog Posts, News

By Holly Wright

The excitement when packing for a trip to the beach is palpable; we select our favorite sun hats, towels and snacks while our children gleefully nestle toys and buckets for sand castles into the day bag. We hope that the sun will shine bright and Lake Michigan not be too frigid or choppy; and we expect that the beach where we recreate and relax will be clean and safe for our families.

The reality is that many of our Michigan beaches are sullied by refuse and littered with food wrappers, soggy cigarette butts, and small plastic pieces of mysterious origin. In an extreme case, Sleeping Bear Dunes National Lakeshore staff found thousands of pieces of broken glass deliberately spread in April on the Lake Michigan beach near the Good Harbor picnic area.

Whether littered on-site or carried from elsewhere in the watershed, unsanitary garbage on our coasts puts-off beach-goers and infringes upon the public’s right to enjoy the shoreline—a great Michigan summertime tradition that’s protected by the public trust doctrine.

Upon entering a body of water, these bottle caps, balloon fragments and straws tangled in summer berms pose another danger to the health of wildlife and people, threatening public trust uses as waves, wind and sun break down materials into small pieces called “microplastics”. Microplastics are known to be harmful to wildlife and are present in Great Lakes drinking water. The prevalence of plastics on our shorelines and in our waters has prompted local beach cleanup efforts.

Microplastics Present in the Great Lakes

The general awareness of plastic pollution in earth’s oceans (and scientific study of the issue) currently exceeds the awareness and scientific understanding of the effects of microplastics (including microfibers) in the freshwaters of the Great Lakes. As USGS put it, “the microplastics story is large and complex”.

But we do know that microplastics are present in our waters.

A United States Geological Survey (USGS) page based on a 2016 study emphasized that one plastic particle per gallon of water was found in Great Lakes Tributary Water; 1,285 particles were found per square foot in river sediment. 112,000 particles were found per square mile of Great Lakes water. Since 2016, plastics have continued to accumulate in the Great Lakes.

Microplastics and Wildlife, Human Health

The Great Lakes support a multitude of wildlife; aquatic insects, fish, amphibians, reptiles, birds; and provide drinking water for approximately 40 million people human and non-human species alike, we all need water to survive; our health is interconnected within the hydrosphere.

Freshwater and marine aquatic wildlife have displayed ill effects from ingesting microplastics. According to National Geographic, “Experiments show that microplastics damage aquatic creatures, as well as turtles and birds: they block digestive tracts, diminish the urge to eat, and alter feeding behavior, all of which reduce growth and reproductive output. Their stomachs stuffed with plastic, some species starve and die.”

Chemical harm from ingesting microplastic causes further concern. Heavy metals, flame retardants and antimicrobials which adhere to plastic surfaces have been associated with endocrine disruption in humans and cancer (via National Geographic).

Since the composition of plastic materials varies greatly, estimating toxicity of plastic is difficult, as is predicting toxicity as chemicals move up, through the food web; and eventually to us, through consumption of wildlife (via National Public Radio).

Drinking Water

We who drink Great Lakes water are ingesting microplastics through our taps. So miniscule in size, microplastics pass through water treatment facilities and into our cups. Microplastics are even turning up in beer brewed from Great Lakes water.

Opting for bottled water may not decrease the risk of ingesting microplastics; in fact, total microplastics in bottled water are evidenced to exceed microplastics in tap water.

Beach Cleanups

Performing beach cleanups supports our community’s right to enjoy our shorelines and can prevent the introduction of some plastics into the Great Lakes. Alliance for the Great Lakes reports that every year, through its “Adopt-a-Beach” program, “15,000 volunteers hit the beach and remove about 18 tons of trash.”

Photos courtesy of NMC Freshwater Society

Mike Seefried and Kathryn Depauw, NMC Freshwater Studies students and members of the NMC Freshwater Society, are participating in the “Adopt-a-Beach” effort this summer by coordinating community beach cleanups.

Seefried and Depauw collected a total 24.36 pounds of trash during their June 1 cleanup at Bryant Park in Traverse City. Local organizations supported the initiative; collection buckets were provided by the Grand Traverse Bay Watershed Center. Volunteers, equipped with gloves and data sheets, combed the shoreline public park and, over an approximate area of 550 feet, removed 707 cigarette filters, 236 foam pieces, and 459 plastic pieces. “When you’re actually on the ground picking it up, there’s kind of a ‘wow’ factor—of how much is actually there,” said Seefried.

A June 29 cleanup performed at Sunset Park yielded 387 cigarette butts, 227 pieces of small foam, and 253 small plastic pieces. Seventy-five food wrappers were also picked up over the area of 261 feet. At the end of the process, 11.7 pounds of trash no longer littered the park—an immediate benefit to the community.

Beach. Cleaning Opportunities, Tools

All are welcomed to participate in future cleanups initiated by NMC’s Freshwater Society. Visit the Freshwater Society’s Facebook page for upcoming cleanup event information.

FLOW can equip you with beach cleanup kits (containing items such as gloves, pencils, clipboards, data sheets, trash bags, and buckets) to use independently. FLOW’s Lauren Hucek encourages anyone interested to rally their friends, families, and coworkers to host their own beach cleanups. Please choose sites that offer public waste receptacles or prepare to dispose of trash privately; recycle when possible. Email Lauren Hucek with questions and requests for kits, or call the FLOW office at 231-944-1568.

Raising Awareness

Plastic is so ingrained and pervasive in our systems, can the independent effort of individuals cleaning beaches make any difference? Are beach cleanups effective?

“Honestly, I think we take the beaches in our area for granted a little bit,” said Seefried. “The point of this work is to clean the beach—but also to raise awareness.”

We know that plastics are in our water—and in our bodies. We know that microplastics are harmful to wildlife, and that it is not understood how they may be harmful to people. But there’s something about actually picking through the refuse on our beaches that sticks with us; we wonder, will a fiber of this cigarette butt; this lost sock; this disposable diaper; one day slip down someone’s throat via a glass of drinking water?

Performing beach cleanups prompts us to consider our own choices and to get involved with the overarching threat to Great Lakes water, wildlife, and our own health—plastics.

Reflections on Independence – Liberty, Water, and the Public Trust Doctrine

Published on July 11th, 2019 by - Blog Posts, H2Olson, News

By Jim Olson

July is “Public Trust Month” at FLOW, a time to gather views and inspiration from people from all walks of life who live, use, enjoy, or depend on the waters of the Great Lakes Basin for life, recreation, and livelihood.

This is because FLOW’s mission is to assure that decisions and actions that affect the Great Lakes are undertaken in the framework of ancient principles, embedded in our law as deep as the Great Lakes and the soils beneath them. These principles, known as the public trust doctrine, recognize the duty of government as trustee to protect, and the rights of the public as beneficiaries to enjoy, these public trust waters and their paramount public nature and uses from one generation to the next.

On July 4, my wife Judy and I hosted a large family picnic at our house in Benzie County. After enjoying the food and multiple conversations going on at once, some of us, with pant legs rolled up above the knees, found ourselves wading in the Platte River with several grandchildren. Watching them totter and frolic in the fast current—their ages ranging from 3 to 23—I had this thought: Liberty includes the gift of freedom to enjoy public trust waters like the Platte River, here in Michigan, and the Great Lakes, and waters throughout the United States and beyond. The public trust in our water resources is a principle that protects and passes on this gift from one generation to the next.

The public trust doctrine is often traced from the Justinian Code 1,600 years ago: “By the law of Nature, these things are common to [humankind]: the air, running water, the sea, and consequently the shore of the sea.”  The doctrine reappeared in 1215 in that “Great Charter of Liberty,” the Magna Carta, to restore the custom and rights of the people to access to the rivers and sea for food and sustenance.

On July 4, 1976, the Declaration of Independence declared:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The U.S. Constitution was adopted and ratified between 1787 and 1788, and not long after, the Bill of Rights  in 1791 declared that no government—federal, state, or local—can deprive a person of the right to “life, liberty, and property” or “other rights [not listed] retained by the people.”

In 1821, in the first of a long line of decisions adopted in similar form as the common law of the people by the courts of every state, the Supreme Court of New Jersey nullified an attempt by a landowner to exclude the public from the seabeds, navigable waters, and their near shores because these waters and special lands were public common property held in a public trust for the benefit of all citizens of a state.

In 1892, the United States Supreme Court reaffirmed the public trust doctrine in the navigable waters, the soils under them, and the shoreline below the high water mark. An influential railroad company hoodwinked a compliant Illinois legislature into granting it almost one square mile of Lake Michigan for a private industrial complex. This didn’t sit well with Illinois residents, especially those who lived in Chicago, and the next session of the legislature repealed the grant.  The company, of course, notified the state that it was too late; they owned the bottomlands and waters of Lake Michigan.

The Supreme Court rejected the company’s claim, and in a landmark decision ruled that the grant to a private company or person was void because the special common public waters and lands owned and held by the states in public trust were “inalienable”! This means that no government can pass a law that deprives a citizen of the inalienable rights, as beneficiary of the public trust, to enjoy and use these waters and special trust lands for fishing, navigating, boating, swimming, bathing, and sustenance—drinking water and growing food.

Imagine that, an inalienable right derived from Roman law, the Magna Carta, and English common law came down to this country because of the “inalienable rights” covered by the Declaration of Independence and American Revolution, and that this “inalienable right” is protected by the public trust doctrine. It is a right that cannot be taken away or repealed, and it is protected by the rights to “life, liberty, and property” and the “other rights of the people” in our Constitution! 

Today, courts around the country are recognizing that the rights of citizens to an individual and indivisible right under the public trust doctrine fall within our “life, liberty, and property” protected by our Constitution.

Talk about a gift for all of us to celebrate during the afterglow of Independence Day and throughout FLOW’s “Public Trust Month” of July. This is one to be thankful for, exercise, and protect for ourselves, our children, grandchildren, and all future generations.

Jim Olson is FLOW’s founder and president. 

A ‘Line 5’ Oil Tunnel Won’t Protect the Great Lakes from Enbridge, Climate Change

Published on May 2nd, 2019 by - Blog Posts

Above: FLOW’s Liz Kirkwood speaking in opposition to a proposed oil tunnel in the Straits of Mackinac, during a November 8, 2018, hearing in St. Ignace.

In the world of public relations, there are facts, exaggerations, and untruths. Right now, Enbridge is bombarding the people of Michigan with hazy PR claims that it has safely operated the Line 5 oil pipelines in the open waters of the Straits of Mackinac for the last 66 years.

The Canadian energy pipeline giant, however, conveniently fails to tell the public that it has allowed the pipelines to deteriorate badly, bending and grinding on the lake bottom in the fierce currents. Enbridge also neglects to mention that on April Fools’ Day 2018, Line 5 threatened to dump its oil into the Great Lakes when a tugboat anchor struck, and risked breaching, the underwater pipelines. 

Rather than seizing on this near-disaster to decommission the decaying pipeline infrastructure built in 1953, the Snyder administration instead spent its final eight months in office cementing a private pact with Enbridge. The backroom deal would leave Line 5 vulnerable to another anchor strike or rupture for up to a decade while Enbridge explores the feasibility of building an oil tunnel under the Straits.

Michigan’s new attorney general, Dana Nessel, in late March correctly determined that the tunnel law passed hastily in the waning days of the 2018 lame-duck legislature was unconstitutional. Gov. Gretchen Whitmer later that same day directed all state departments to halt work on tunnel permitting. But Gov. Whitmer’s recent opening of negotiations with Enbridge seeking to speed up the stalled tunnel process contradicts her own directive and circumvents a transparent public process.

Trying to hasten a bad idea won’t make it any better. While seeking to revive Snyder’s 99-year tunnel deal with Enbridge risks undermining Gov. Whitmer’s own goal to combat climate change risks and impacts.

And Enbridge and the former Snyder administration’s claims that the proposed oil tunnel would serve a public purpose by also housing electrical and other utilities is a ruse that masks an enormous risk of explosion, as experts advising FLOW determined in prior research.  

Just today, in fact, an electrical supplier to the Upper Peninsula – American Transmission Company or “ATC” – issued a letter indicating that it has no intention of running its 138,000-volt electric lines through the proposed oil tunnel. “A tunnel of uncertain timing, later in the decade, does not serve the public,” the letter stated. “ATC does not believe that installing high voltage electric lines in close proximity to high pressure oil or gas lines is a good idea.”

It’s never been clearer that Enbridge is pretending there’s a public purpose to their private oil tunnel in order to gain access to the public waters and bottomlands of the Great Lakes. The Great Lakes Submerged Lands Act requires there be a “public purpose,” no impairment or interference with fishing and other public trust uses and rights of citizens and communities, and a showing of no feasible and prudent alternative for transporting Canadian oil back to Canada. The state of Michigan must restore the rule of law and transparency by requiring Enbridge to apply to build a tunnel in the Straits under the law, not negotiate occupancy of public bottomlands behind closed doors.

The real solution to the Line 5 threat must protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population. Gov. Whitmer must heed her campaign promise to shut down Line 5, while implementing a common-sense backup plan for propane transport in the Upper Peninsula using truck, train, or a small new pipe that doesn’t cross the Straits of Mackinac.

Let’s cut through Enbridge’s PR-fog and get the facts straight. Line 5 is not vital energy infrastructure for Michigan. More than 90 percent of the oil in Line 5 comes from and flows back to Canada.

Not only does Enbridge lack adequate insurance to cover the impacts of a catastrophic spill estimated from $1.87 billion to as much as $45 billion, the company’s oil spill response plan was held to be inadequate in late March by the U.S. District Court for the Eastern District of Michigan.

Liz Kirkwood, Executive Director

Enbridge’s dismal track record is underscored by its 2010 Line 6B Kalamazoo River disaster – known as the largest inland tar sands oil spill in U.S. history – and extends to Line 5, which has leaked in total over a million gallons of oil in Michigan and Wisconsin from at least 33 known spills since 1968.

Infrastructure needs abound in Michigan – ranging from our failing drinking water and wastewater infrastructure to the aging Soo Locks and a long-term clean energy plan for the U.P and the state as a whole.  Let’s shut down Line 5 and create jobs focused on those real needs, instead of protecting Enbridge’s private interest in our public waters.

Reflecting on Earth Day 1970 in Michigan and the Origin of the State’s Environmental Movement

Published on April 22nd, 2019 by - Blog Posts

Above: Poster for the ENACT (Environmental Action for Survival) Earth Day Teach-In on the University of Michigan – Ann Arbor campus in March 1970.

“Man has so severely despoiled his natural environment that serious concern exists for his survival…What began as an idea and a desire to do something about saving our environment by a small study group has now mushroomed into an officially recognized organization with nearly 200 members.”

— From the newsletter of ENACT (ENvironmental ACTion for Survival), University of Michigan, Nov. 19-28, 1969

The public concern awakened in 1962 by Rachel Carson’s Silent Spring had deepened with news of the exploding world population and declining wildlife species like bald eagles, which plummeted to just 82 pairs in Michigan during the 1960s after DDT exposure thinned their eggshells. As pollution darkened skies and choked rivers, many new activists drew a link between environmental problems and threats to the survival of the human race. The new movement of environmentalists suddenly became a major force in Michigan during the late 1960s and early 1970s.

Jane Elder, who worked for the Michigan chapter of the Sierra Club in the 1970s, said, “I and many others of the new environmental movement came of political age during the closing scenes of Viet Nam and the crest of civil rights. We knew we could change the world, and saving the environment was part of that agenda. We saw a generation of activists stop a war. Our motivations were driven in part by collective vision and passion, not the inside game.”

The Pioneering Work of Joan Wolfe in Michigan

One of the most effective of the new advocates was a bird-lover, mother, and volunteer, Joan Wolfe of Rockford, north of Grand Rapids. Born in Detroit in 1929, Wolfe grew up in Highland Park with parents who contributed considerable time to community affairs. Her mother was president of the local hospital auxiliary and of the Girl Scout Council; her father was president of the Highland Park school board and of the state chapter of the American Institute of Real Estate Appraisers. By contrast, her husband Willard had no family tradition of community activism, but had become an active fly fisherman. In his childhood living on the Detroit River at Grosse Ile just before World War II, he had seen “tremendous weed growth” and stayed out of the polluted water, but hadn’t then made broader observations about the condition of the outdoors. He was delighted to find trout in the Rogue River, which wound through the Rockford area, when the Wolfes moved there in the late 1950s. But the same stream was also fouled by effluent from the Wolverine Tannery and a paper mill. “There was no outcry,” Will Wolfe said in 1999. “It was still too close to the Depression. The problem was too close to the bread and butter of the community.”

Soon both of the Wolfes would become activists. In the early 1960s, Joan Wolfe became president of the Grand Rapids Audubon Club. In that position she tried to call the attention of Audubon members to issues that connected bird conservation to larger trends such as habitat loss and pesticide use.

A fire on the Cuyahoga River at Cleveland in July 1969 helped galvanize public sentiment for Earth Day the following year. A fire also erupted on the Rouge River in southeast Michigan in October 1969, alarming the public and inspiring calls for tougher environmental laws.

Her most important work began in 1966. Working with 11 sponsoring organizations, Joan Wolfe coordinated an all-day seminar that October at the Fountain Street Church in Grand Rapids to educate the community about problems facing the local, state, and national environment. It was one of the biggest events of its kind in that era, attracting over 500 people, half of them college students. Officials of the state conservation and public health departments spoke on the need for better sewage systems and the dangers of persistent chemicals, but others addressed threats caused by growing population and a social attitude that science could fix any natural resource problem. Dr. Howard Tanner of Michigan State University’s Department of Natural Resources said the predicted U.S. population of 400 million in the year 2000 posed special challenges, adding, “if we don’t put a level on our population and give thought to its distribution, we’re just stupid. There’s no other word for it.” Merrill L. Petoskey, assistant manager of the Southern Michigan Region of the department of conservation, called humankind “too reckless and too greedy. It’s almost past time when we can repair the damage we have caused.” 

The process of planning the seminar had resulted in general agreement among the sponsoring organizations that the community needed a coordinating organization. In February 1968, Joan Wolfe pulled together a dinner of Grand Rapids community leaders to ask their support for something she was calling the West Michigan Council on Environmental Action. The roster of the meeting was extensive and impressive.  Paid for by the Dyer-Ives Foundation, the dinner was attended by representatives of the local League of Women Voters, the West Michigan Tourist Association, the local Garden Club, the Anti-Pollution Committee of the utility workers local union, the Isaac Walton League, the Grand Rapids Press and WOOD-TV, the president of Grand Valley State College, and other dignitaries.

The group agreed on the need for a council of organizations and individuals who would work together on environmental causes, and they signed up to support it.  At the new council’s first meeting the following month, Wolfe was named president. The council grew quickly to include 45 organizations and more than 400 individuals. The organization also launched its issues work quickly, speaking at numerous hearings held by government agencies. An official of the state water resources commission exclaimed at a public hearing in 1968, “This is the first time we’ve heard from the grass roots.”

Gaylord Nelson Takes It National

U.S. Senator Gaylord Nelson of Wisconsin had proposed a national environmental “teach-in” on college campuses to be held in April, urging that it become an opportunity for learning about the nation’s and world’s grave environmental problems. Fueled by campus activism, the teach-ins evolved into Earth Day and stunned skeptics. An estimated 10,000 schools, 2,000 colleges and universities, and almost every community in the nation participated in events to celebrate and clean-up the environment. Cars were banned for two hours on Fifth Avenue in New York City. The U.S. Congress adjourned for Earth Day so that members could attend teach-ins in their districts.

All three major TV networks covered the events around the country. A geology student attending Albion College, Walter Pomeroy, appeared on a CBS-TV prime-time special on April 22, Earth Day: A Question of Survival, hosted by Walter Cronkite. In contrast to protests on other campuses that Cronkite called sometimes “frivolous,” the Albion activities Pomeroy organized included the cleanup of a vacant lot to create a small urban park.

Albion called itself “Manufacturing City U.S.A.,” CBS reported, and not all its foundries had installed air pollution control equipment. But Pomeroy told reporter Hughes Rudd that he had arranged meetings with the local polluters to promote dialogue.  “We were afraid,” he said, “that if we picketed the factories, it would actually turn the community against us.” The special showed Pomeroy’s fellow students jumping up and down on the non-aluminum cans they’d collected in the cleanup, making them easier to return to the manufacturer with a message that it should switch to recyclable materials. Michigan television stations also broadcast specials in the season of Earth Day. WOOD-TV in Grand Rapids broadcast a series, Our Poisoned World, detailing serious local air, water, and noise pollution, and the problem of garbage disposal.

Michigan One of the Hotbeds of Earth Day Action

At a five-day teach-in on the University of Michigan campus in Ann Arbor in March, in which an estimated 50,000 persons participated, Victor Yannacone, who in 1967 had filed the Environmental Defense Fund lawsuits to stop the spraying of DDT and dieldrin, spoke on use of the courts to halt pollution. He told students, “This land is your land.  It doesn’t belong to Ford, General Motors, or Chrysler…it doesn’t belong to any soulless corporation.  It belongs to you and me.” A new student group called ENACT organized the week’s events, which included an “Environmental Scream-Out,” a tour of local pollution sites, music by popular singer Gordon Lightfoot, and speeches by entertainer Arthur Godfrey, scientist Barry Commoner, consumer advocate Ralph Nader, and Senators Nelson and Edward Muskie of Maine.

Business Week magazine said the Ann Arbor event had attracted the greatest turnout of any teach-in to that date.  Noting that President Richard Nixon and college administrators hoped environmental issues would turn students away from Vietnam War protests, the magazine fretted that it appeared “the struggle for clean air and water is producing as many radicals as the war.  And if the rhetoric at Michigan is any guide, business will bear the brunt of criticism.”

Action Took Different Forms on Different Campuses

Tom Bailey, a Marquette high school student, worked with students at Northern Michigan University to plan Earth Day activities.  One was a “flush-in.” Students flushed fluorescent dye tablets down dorm toilets at a synchronized moment in an effort to prove that sewage was directly discharging into Lake Superior. 

Events like these not only attracted the attention of the press, but also gave future environmental professionals their first major public exposure. Bailey later worked for the state Department of Natural Resources, as had his father, and became executive director of the Little Traverse Conservancy. One of ENACT’s founders on the University of Michigan campus, John Turner, later became director of the U.S. Fish and Wildlife Service.  Doug Scott, a graduate student active in ENACT’s teach-in planning, moved on to the national staff of the Wilderness Society and the Sierra Club.

Student concern and action did not stop on Earth Day. Walt Pomeroy of Albion College contacted activists on other campuses who agreed the next logical step was the formation of a student lobby for the environment.  Described as “lobbyists in blue jeans” by one newspaper, the new Michigan Student Environmental Confederation received a surprisingly warm welcome from some in the Capitol.

“Soon we made friends in the legislature on both sides of the aisle,” said Pomeroy in 1999. “We learned a day at a time. And since we were in the Capitol almost every day, our network of friends and supporters expanded from just student groups to a diversity of community, environmental and sportsmen groups. Legislative priorities turned into victories…We started an environmental organization with a good cause, not much financial support and worked with the sportsmen and other environmental groups. We created the path – the opportunity – for others to also organize environmental groups and hire staff. None had existed solely to focus on state environmental legislative policies prior to the creation of MSEC. Many followed and are now part of the accepted political landscape in Lansing and throughout Michigan.”

About the Author:

Dave Dempsey, Senior Advisor

FLOW Senior Advisor Dave Dempsey has 35 years’ experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission. He has also provided policy support to the Michigan Environmental Council and Clean Water Action. He has authored several books on the Great Lakes and water protection.

This article has been edited and excerpted from Dave Dempsey’s book, Ruin and Recovery: Michigan’s Rise as a Conservation Leader.

The Future of Line 5 in the Straits of Mackinac

Published on April 12th, 2019 by - Blog Posts, H2Olson

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:

  1. 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:

  1. 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.
  1. 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.

Read more about the history and law surrounding Line 5 here!

  1. 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.
  1. 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:

  • Thank our state leaders for taking action on the unconstitutional Act 359 and the misguided oil tunnel agreement;
  • Urge our state leaders to take immediate steps to implement the actions outlined above to formally scrap the oil tunnel and shut down Line 5.

Sign of the Times: Toledo Voters Pass Bill of Rights for Lake Erie

Published on March 22nd, 2019 by - Blog Posts, H2Olson

Above: A Summer day on western Lake Eire

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.

Toledo is a Telltale Sign

On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!

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.

PFAS: An Environmental and Public Health Crisis that Needs Answers and Action

Published on March 20th, 2019 by - Blog Posts

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 Emergency C&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.  

PFAS Risk

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

PFAS Threats

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.

PFAS Consequences

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

Excellent listings of recommendations for establishing regulations and identifying and mitigating the current crisis in Michigan can be found on the websites of the Michigan Environmental Council (MEC) and Michigan Department of Environmental Quality (MDEQ).  Michigan Environmental Council PFAS Recommendations,  PFAS Response – Taking Action Protecting Michigan 

Important and additional actions include, but are not limited to, the following:

  1. 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.  
  2. 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.
  3. New regulations under the Toxic Substances Control Act (TSCA) and/or state authority should use a precautionary approach to 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.
  4. 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.
  5. Ensure an adequate number of water testing laboratories are in place with appropriate sample turnaround times.

  6. 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. 

  7. 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.