Former FLOW board chair Skip Pruss delivered the following remarks — inspired by Dr. Martin Luther King Jr’s “I Have a Dream” speech — on January 12 at the Unitarian Universalist Congregation of Grand Traverse.
By Skip Pruss
I have a dream where the urgency of the climate crisis becomes a unifying force, enabling all to recognize our mutual interests and independencies, and awakening the best within us to common purpose.
I have a dream that we realize that we cannot burn our way to a better world; that we, forthwith, enable a historic transformation to carbon free energy sources where energy producing technologies like wind and solar work with nature and not against it; and where infinite nature-based resources displace oil, gas and coal — which are finite and ecologically and climatically toxic.
I have a dream that government will someday soon be wise enough to account fully for the economic and ecological costs of activities that affect the planet when formulating and implementing public policy. And that government will recognize the value of maintaining the functionality, vitality, and resilience of natural systems.
I have a dream that we recognize the fragility and complexity of the biosphere and that we finally have the political will and wisdom to embrace the “precautionary principle” and enact laws informed by science, and policy informed by deeper knowledge and circumspection.
I have a dream that decisions will be made based upon how they will affect our children and future generations and that we recognize the importance of intergenerational equity and fully embrace the adage, “We do not inherit the earth from our ancestors. We borrow it from our children.”
Lastly, I have a dream where we all embrace an ethic of respect for all living things and a conscious appreciation of the gifts that nature provides; that the earth’s biodiversity and abundant resources are appreciated for the multiple benefits and ecological services they provide; and that we will garner the wisdom and the will to cherish the natural world, repair what we have broken, and begin to restore what we have lost.
Watch the full video below (Skip Pruss begins speaking at 27:30):
From left to right, panelists Alan Steinman, George Heartwell, Skip Pruss and Dave Dempsey. Photo by Liz Kirkwood
FLOW held a community engagement session at the Grand Rapids Public Library on Thursday, December 5, to make the economic case for government’s role in protecting human health and the environment—both nationally and locally.
The Grand Rapids event featured presentations by Pruss, as well as Alan Steinman, who directs Grand Valley State University’s Annis Water Resources Institute, former Grand Rapids mayor George Heartwell, and FLOW senior policy adviser Dave Dempsey. FLOW executive director Liz Kirkwood opened the engagement session with introductory remarks and closed it with a panel discussion.
Pruss spoke about his early career in government and highlighted the then-prevailing spirit of public service, and public support for and confidence in government’s high aspirations for implementing change. Examples of that change include building the interstate highway system, reaching the moon, launching the war on poverty, and fostering a nationwide public education system which was at one time the envy of the world. Landmark environmental laws passed approximately 50 years ago demonstrated the value of well-conceived governmental interventions. Since its enactment in 1970. economic health benefits related to the Clean Air Act are estimated at $22 trillion.
Paradoxically, despite significant achievements, public confidence in government has declined in recent decades, said Pruss, who argued in his “Resetting Expectations” briefs that government should support the renewable energies of tomorrow rather than the dirty fossil fuels of yesterday.
Without government subsidies, the oil and coal industries are going bankrupt: they no longer make good business sense. Meanwhile, a report by the White House Office of Management and Budget demonstrates that environmental regulations have the best cost-benefit ratio of any federal rules. Those regulations also help to level the playing field, and eliminate free riders who don’t abide by the rules.
Across the political spectrum, economists agree that positive externalities—activities that result in additional benefits for society—should be promoted, and negative externalities, which indicate market failure, should be avoided. Negative externalities impose “spillover” costs on society that are not included in the cost of production.
To emphasize his point, Pruss quoted Sir Nicholas Stern, who said that “Climate change is a result of the greatest market failure that the world has ever seen.”
“It’s not just the release of hazardous substances and soil and groundwater contamination and the impact to health and wildlife, it’s also the irreparable loss of these functions of this landscape,” said Pruss while sharing a searing image of the destruction of the Tar Sands region in Alberta, Canada. “The benefits of this landscape that are now gone for future generations. We can’t afford to do that.”
Government environmental protection and investments pay off at the local level, too, added Dr. Alan Steinman and former Grand Rapids mayor George Heartwell.
Steinman opened his presentation with an image of a West Michigan sunset over Lake Michigan, which he said shows how economic development and environmental protection go hand in hand. Steinman then contrasted images of Muskegon Lake as an industrial hub and now, as a favorite recreation spot.
Steinman worked 10 years ago on a project to stabilize Muskegon Lake’s shoreline—a project whose funding didn’t originally intend to highlight economic impacts, but whose cascading benefits included “when the insects came back, the fish came back, and when the fish came back, the people came back.”
Ecosystem restoration is generally considered a 3-to-1 return on investment, but the Muskegon Lake restoration yielded a 6-to-1 return.
Former Grand Rapids mayor George Heartwell started his presentation on an upbeat note: “Let me start with a modest proposition—mayors will save the world!” he boomed. “The work that’s done by cities, by progressive mayors, by visionary and innovative mayors will turn down the thermostat on global temperatures.”
While these superheroes are saving the world, they must also address extreme rain events, flooded sewers and common issues facing cities like Grand Rapids.
Heartwell narrated a Grand Rapids story that evolved from spilling billions of gallons of combined storm water and sewage overflow into the Grand River to separating storm and sanitary sewers and creating storm water treatment systems in neighborhood green spaces that also serve as amenities.
Heartwell shared a litany of steps that Grand Rapids has taken to improve the urban environment and mitigate against the effects of climate change.
“I know it sounds like a very small step toward saving the human species but green infrastructure in every city will at least save us from storm water and flooding damage and buy us the time we need to do other climate change mitigation.”
“If every city did what Grand Rapids is doing, life on our planet would survive, and the seventh generation would look back at us with gratitude.”
Dave Dempsey stressed the economic value of groundwater to Michigan and the huge costs of failing to protect it from contamination. About 45% of Michigan’s population gets its drinking water from groundwater sources and industry and agriculture also use considerable groundwater for manufacturing and irrigation. Yet a legacy of contamination has cost Michigan taxpayers over $1 billion in cleanup costs, and there are 6,000 more orphan sites—where no private source is available—that may require taxpayer money to clean up.
Dempsey said Michigan needs stronger groundwater protection policies to support Michigan job creation and reduce health risks from chemically contaminated water supplies.
This article is excerpted from the final of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor, and Economic Growth, Skip Pruss, that make the economic case for government’s role in protecting the environment. The fourth policy brief, “Resetting Expectations: Accounting for Environmental, Health, and Climate Impacts in the Energy Sector” is available here to read or download.
Pruss’ first policy brief in the series, “Resetting Expectations: Government’s Role in Protecting Human Health and the Environment,” is available here in executive summary and in full.
The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report.
The third brief, “Resetting Expectations: The Multifaceted Benefits of Regulation for the Economy and Environment,” is available here in executive summary and in full.
FLOW will convene an environmental economics public listening session on Dec. 5 in Grand Rapids. We convened our first listening session on Nov. 13 in Traverse City (click this link to watch a live video feed of the event; blog coverage also available here).
Natural systems provide trillions of dollars of economic value annually but are largely unacknowledged as essential to our economic well-being. Government plays a critical role in protecting natural systems that provide wide-ranging economic benefits to industry, commerce, agriculture, recreation, and tourism, for present and future generations.
At the same time, perverse incentives remain in law and policy that are profoundly disruptive to the environment, the economy, social welfare, and a stable climate. Government subsidies for the development and use of fossil fuels undermine and negate the very protections and safeguards sound environmental regulations aim to preserve. These subsidies, some of which date back a full century, are harmful anachronisms that are contrary to the public interest and sound economic policy.
Environmental standards can also be a strong force for innovation within business and industry by reducing waste and production inefficiencies, inducing technological improvements, lowering costs, and mitigating environmental vulnerabilities. Environmental regulations can level the playing field within business sectors by setting industry-wide standards for protection and safeguards and by fostering competition for improvements among competitors.
This fourth brief—”Resetting Expectations: Toward a Full Accounting of Environmental, Health and Climate Impacts in the Energy Sector”—is the last in a series of policy briefs that examines the economic costs associated with government policies that do the opposite—imposing unnecessary and unaccounted for burdens on the environment, public health and the economy. Obsolete and inefficient government policies and programs impose additional costs on society and taxpayers by directly supporting activities that result in environmental degradation and diminishment of the ecological services provided by healthy and robust natural systems.
Fossil fuel subsidies persist in policy despite being demonstrably inefficient and more costly than clean energy alternatives because they serve powerful, deeply embedded, and influential special interests in global energy markets. The adverse environmental and climate consequences and associated economic costs from the production and use of fossil fuels are “negative externalities” unaccounted for in the price of goods and services. In economic theory, negative externalities are indicators of “market failure.”
An optimal regulatory framework would, consistent with established tenets of economics, assess the full range of costs and impacts of competing energy technologies. A rational regulatory framework would quantify and monetize the environmental, public health and economic costs and impacts from the production and combustion of oil, natural gas, and coal, and compare them against clean energy alternatives.
Full accounting of the direct and indirect economic effects of energy subsidies would enable government to make more rational, evidence-based decisions regarding the impacts of energy policy on the environment, the economy, public health, and the climate. It would also align with the fundamental purposes of the Public Trust Doctrine in advancing the most environmentally beneficial, healthful, and economically efficient policies to safeguard present and future generations.
Environmental protections and safeguards, implemented through government regulations, provide overwhelming economic and health-related benefits for society at large. Maintaining the functionality, vitality, and resilience of natural systems provides cascading economic benefits to industry, commerce, agriculture, recreation, and tourism, helping to assure these benefits for future generations. The environmental protections afforded by government regulations are substantial but are marginalized and, at times, negated by competing policies that cause environmental and economic harm.
Incentives are deeply embedded in economic policies in the form of subsidies provided to business and industry that degrade and diminish natural systems, resulting in substantial and permanent economic loss. Long established, yet function- ally obsolete, energy subsidies produce wide-ranging insidious and harmful effects on the environment, public welfare, and the economy. Despite this, demonstrably inefficient and detrimental subsidies for fossil fuels are pervasive both domestically and globally, and supported by long-standing powerful economic interests that are firmly integrated into our politics and our economy.
FLOW hosts community engagement sessions on government’s role in protecting human health and the environment
Photo by Rick Kane
By Diane Dupuis
Do environmental regulations hinder or help the economy?
That question framed FLOW’s community engagement session on November 13 in Traverse City examining the role of government in protecting human health and the environment. Presenters included Cherry Republic founder and environmental steward Bob Sutherland and former FLOW board chair Skip Pruss, who has authored three “Resetting Expectations” reports for FLOW that make the case for government regulations to protect the environment.
FLOW will hold a second Resetting Expectations community engagement session on December 5 in Grand Rapids. Click here to RSVP; the event is free, but seating is limited.
Community members who attended the Traverse City session were able to interact throughout the series of presentations by responding via text or web app to questions projected intermittently. Residents of Northwest Michigan are well versed in matters affecting the Great Lakes Basin, yet the session presented familiar concepts in new ways, as well as altogether new perspectives.
Kicking off the presentations, Cherry Republic’s Bob Sutherland noted that in December his cherry-themed retail-and-catalog operation will give away $250,000 in profits, mostly to environmental organizations. “My giving comes from my trust in society, in people’s ability to make the world better,” Sutherland said.
“I trust in my neighbor,” he continued, but “it’s just a trickle in the bucket. We need to get the trust back in our government to establish better rules and regulations. As a businessman, I wish that my competitors were operating with the same principles that drive me to continuous improvement in how we treat the environment.”
“Wouldn’t it be great,” Sutherland mused, “if every company was working on clean water and protecting our land? That’s where government regulations come in. We have a future in building trust here. Let’s start a movement in getting a fair and continuously improving level playing field for business.”
Skip Pruss, former director of the Michigan Department of Energy, Labor, and Economic Growth, cited a United Nations study that estimated the value of nature-based services at $60 trillion globally and $18 trillion in North America. As an example, wetlands are among the most biologically productive areas on Earth, Pruss noted, yet Michigan has lost more than 4 million acres of wetlands to development and drainage, worth billions of dollars in lost functions such as water filtration, flood and erosion control, wildlife habitat, human recreation, and food supply.
In terms of cost-benefit analysis, the Clean Air Act generated economic benefits valued at $2 trillion, while the compliance costs to business were $65 billion; benefits exceeded costs by a factor of 43-to-1, Pruss explained.
Of all the water on Earth, only 3% is fresh water. Of that 3%, only 0.30% is surface water. So only .09% of the entire world’s water is fresh surface water. The Great Lakes contain more than 1/5 of this extremely scarce resource.
Dave Dempsey, senior policy advisor at FLOW, focused his presentation on Michigan’s groundwater, depended upon for drinking water by 45% of Michigan residents. Dempsey identified multiple threats to Michigan’s groundwater, including failing septic systems, nitrates from agricultural practices, and contamination from both closed and ongoing sites. Over the last 24 years, Dempsey revealed, Michigan’s taxpayers have been burdened with more than $1 billion in costs to remedy “orphan” contamination sites (sites where the polluter is not picking up the bill).
Regarding the contaminant PFAS, Dempsey noted that Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) has proposed one of the most health-protective PFAS drinking water standards in the country. However, a new state committee controlled by business interests may delay the proposed state drinking water standard for PFAS. Meanwhile this group of chemicals, called “forever chemicals” because they can remain in the human body for years, is linked to a raft of adverse effects on human health, Dempsey said.
Presenting next, Lisa Del Buono, MD, discussed public health and the environment. Del Buono revealed that, according to the American Lung Association, the Clean Air Act has saved $22 trillion by avoiding hospital admissions, emergency room visits, premature deaths, and other adverse effects of air pollution. In 2012 alone, Del Buono noted, 10 climate-sensitive events analyzed by GeoHealth caused an estimated $10 billion in health-related costs. With most economists agreeing that carbon-pricing is the quickest way to reduce the costs and health risks of carbon pollution, Del Buono concluded, a bipartisan climate solution has been introduced as legislation in Congress as the Energy Innovation and Carbon Dividend Act, HR763.
Next, Liz Kirkwood, Executive Director of FLOW, praised the Great Lakes Restoration Initiative, a federal program that has funded 3,500 restoration projects around the basin, with an economic output of $3.35 for every dollar invested. Kirkwood then outlined a new FLOW initiative, “OUR20 Communities,” in which the relevance of water as a finite resource fundamental to life is recognized in every aspect of community decision-making. Collaborative solutions in the OUR20 model are developed by the communities themselves, and address multiple threats to water while building champions and coalitions involving stakeholders in transportation, food production, energy, recreation, housing, and more.
Kirkwood outlined the legal framework—The Public Trust Doctrine—that underpins the OUR20 Communities model, and described a sustainable “blue economy” in which the environment, the economy, resilience, and social equity are intertwined. She noted that the future is in the hands of millennials, 81% of whom view business success as tied to meaningful social impact. And more businesses, she said, are choosing to be seen as a force for good by emphasizing people and planet as well as profit.
As an example of a nature-based solution to support infrastructure, Kirkwood pointed to the Kids Creek Restoration Project in Traverse City, coordinated by the Watershed Center Grand Traverse Bay. Looking at the potential of adopting the OUR20 Community model in Traverse City, Kirkwood proposed future action plan ideas for the Grand Traverse Bay watershed, including a plastics pollution awareness campaign, septic system stewardship and local ordinances, stormwater funding options, and more.
Kirkwood explained that every community in the Great Lakes can become an OUR20 Community. The framework, she said, puts more tools in the toolbox — tools that allow for flexible thinking as each community defines how we move forward together with solutions that keep water in the forefront of conversations and action steps. “These are opportunities to engage,” she concluded, on something we all agree about: the vital importance of water in our communities.
FLOW will hold a second community engagement and listening session on December 5 in Grand Rapids. Click here to RSVP.
This is the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil the last two briefs in the coming months.
The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.
Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.
Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.
In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.
The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.
Report’s Key Facts
Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers.More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health.
Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative.The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.
Government’s Role in Protecting Human Health and the Environment
Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.
Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.
It is imperative that political leaders, policymakers, and citizens come to understand this critical association.
This is the first of four reports by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil one report each month.
How We Got Here: The Rise of Modern Environmental Protection
Fifty years ago—on June 22, 1969—industrial waste covering the surface of the Cuyahoga River in Cleveland, Ohio, burst into flames. The fire was so intense it badly damaged two railway bridges crossing the river.It was not the first time the Cuyahoga had caught fire. Described by Time magazine as a river that “oozed rather than flowed,” the Cuyahoga had erupted in flames many times over decades, with the largest fire dating back to 1952. Yet it was the 1969 fire that ignited public concern and helped galvanize political action, culminating in the passage of the Clean Water Act in 1972.
The Cuyahoga emptied its industrial wastes into Lake Erie as did the Detroit, Sandusky, Raisin, and Maumee Rivers. Many other rivers delivered nutrient loadings of nitrogen and phosphorus from agricultural watersheds and municipal sewer systems. Untreated wastes and nutrients took their toll, and Lake Erie, an integral part of the largest freshwater system in the world, was declared dead.
The foundational laws and regulations in the modern era aimed at protecting public health and the environment were born in crises.
The last half century has witnessed sweeping changes in the public perception of government and its role in advancing the public interest and improving public welfare. Surveys today show public trust in government is in sharp decline and criticism of government has become a bipartisan social norm. To many, “government regulation” connotes undue interference with markets, competition, and the economy, yet, at the same time, surveys show overwhelming bipartisan support for the protection of air, water, public lands, and natural resources – an essential function of government.
To explain these contradictory outlooks, FLOW is publishing a series of four policy papers that trace the history of environmental regulation, illustrating how it protects individuals, families, and communities while fostering innovation and economic gains.FLOW advocates for greater application of the Public Trust Doctrine, a model for stewarding public resources, addressing the growing challenges of maintaining water quality and confronting the climate crisis, and at the same time, restoring public trust in government’s critical oversight role.
FLOW’s four policy papers—to be published once a month between late June and late September—will articulate the costs and benefits of environmental regulatory systems, explain how environmental regulations prevent harm, narrate how regulations protect people and support our economy, and cover market failures, subsidies, and negative externalities.
Report’s Key Facts
Surveys show overwhelming bipartisan support for the protection of our air, water, public lands, and natural resources. But the public lacks confidence in the effectiveness and competency of government to afford such protections.
“Deregulation” has become a meme that resonates to many as a desirable goal and a public good, but is rarely contextualized as undoing necessary, appropriate, and successful government interventions.
Absent from the public dialogue are informed discussions of the purpose and value of the protections afforded by regulations and the wide array of benefits that regulatory structures provide to the public.
Studies show that the quantifiable benefits of environmental regulations greatly exceed the costs imposed on business and the economy.
The Office of Management and Budget (OMB), under President Trump, has found that the benefits of major regulations have exceeded costs by hundreds of billions of dollars.
OMB also found that the benefits provided by EPA regulations are the most efficientin terms of providing the most benefits at the least cost.
Environmental protections afforded by federal law are under siege as the Trump administration aggressively pursues efforts to broadly roll back environmental regulations and expedite fossil fuel development, while expressing open contempt for climate concerns.
Government, according to the Michigan Supreme Court, has a “high, solemn and perpetual” fiduciary responsibility as trustee, under the doctrine, to protect and preserve the trust for future generations.
The accepted means of determining the economic impact of regulations—cost-benefit analysis—has been subverted under the Trump administration, producing an imbalanced accounting of costs over benefits.
The Public Trust Doctrine has the potential to apply as a compelling legal framework to protect the public interest in all commonly held natural resources—our air, our non-navigable waters, wetlands, forests, and public lands.
Using the Public Trust Doctrine to fight the war against government
Environmental regulations are often assailed as unduly interfering with free markets, undermining competitiveness, and adding unnecessary costs to the production of goods and services. At the same time, public surveys and polling show strong and consistent support for efforts to protect natural resources and the environment.
While the public at large displays a strong consensus for measures that protect our air and water, the public has less appreciation for the full array of benefits government regulations provide and lacks confidence in the effectiveness and competency of government to afford such protections.
The benefits of government regulation are measurable and are overwhelmingly favorable in the realm of environmental protection, where the quantifiable benefits of regulations greatly exceed the costs imposed on business and the economy.
The discontinuity between the need for regulatory interventions to protect human health and the environment and the distrust of government’s regulatory mandate is attributable, at least in part, to a strong line of critical commentary from conservative “think tanks” and right-of-center media animating suspicion and distrust in government’s effort to advance the public interest.
Environmental protections afforded by federal law are under siege as the Trump administration aggressively pursues efforts to broadly roll back environmental regulations and expedite fossil fuel development, while expressing open contempt for climate concerns. Meanwhile, former Governor Rick Snyder in late 2018 signed into law a bill that limits new regulations in Michigan to the weakened regulatory standards defined by federal law.
The field of government regulatory activities is vast. This paper provides a historical perspective on environmental regulations, illustrating the many ways government regulatory systems provide cost-effective interventions that protect human health and the environment. The effect of regulations can and should be measured and monetized as a means of ensuring sound government policies that minimize harm to the public and avoid imprudent and costly impacts.
Environmental regulations are intended to protect every citizen’s common interest in this wondrous natural resource heritage and to prevent further harm so that future generations can continue to enjoy and derive the same benefits we have today. We have charged government with this awesome responsibility and the corresponding “duty to protect” and safeguard our common natural resources is deeply embedded in Michigan’s jurisprudence.
The Public Trust Doctrine is the legal framework to protect shared natural resources also referred to as “the commons.” The Doctrine holds that the Great Lakes and their tributary waters, and by extension, all water-dependent natural resources, are held in trust for the benefit of the people. Government, according to the Michigan Supreme Court, has a “high, solemn and perpetual” fiduciary responsibility as trustee, under the doctrine, to protect and preserve the trust for future generations. In so doing, public trust in government can be enhanced as well.
Michigan lies at the heart of the Great Lakes—the most magnificent freshwater system on the planet. The good news is that there exists a broad public consensus to protect this extraordinary natural resource endowment, as well as the availability of a long-standing set of legal principles that, if better appreciated and activated, can empower our citizens and leaders to hold government accountable for protecting our commonly held natural resource heritage.
The paper offers the long-recognized Public Trust Doctrine as a legal framework to address the challenges of protecting and enhancing our natural resources and combatting climate change while rebuilding public confidence in the role of government.
In an end-run around the public participation process they established, Governor Rick Snyder and Enbridge, Inc., the owner and operator of Line 5, are exploring the possibility of building a $500 million tunnel to replace the stretch of 65 year-old Line 5 pipeline that runs under the Straits of Mackinac.
While a tunnel, properly designed and engineered, may be able to prevent harm in the event of a pipeline breach under Lake Michigan, there are compelling reasons why a tunnel should not be built.
First, the five-mile segment of a tunnel running under the Straits of Mackinac represents less than 1 percent of Line 5’s total length of 645 miles. Long segments of this aging infrastructure run parallel to the Lake Michigan coast in the Upper Peninsula, crossing 400 rivers and streams that are tributary to Lake Michigan and numerous other water bodies. Records from the Pipeline Hazardous Materials Safety Administration indicate that in the last 50 years, there have been at least 29 spills along the length of Line 5 outside of the Straits, resulting in the release of over 1 million gallons of oil and natural gas liquids.
The threats to our freshwater lakes and streams will escalate over time as the other 640 miles of Line 5 age and degrade.
Second, aside from the fact that Line 5 crosses Michigan largely to serve markets outside our state, a tunnel for Line 5 is a fundamentally unsound investment – one that is unneeded, economically imprudent, and may soon be functionally obsolete.
Major new pipeline infrastructure investments assume the continued demand for transportation fuels. But our fossil fuel-based economy is in transition and will be completely transformed within the coming decades.
Recent petroleum sector forecasts by firms specializing in energy trends like Bloomberg, Navigant, and Goldman Sachs, predict that the transition to electric vehicles will accelerate quickly with a corresponding, precipitous drop in the demand for transportation fuels.
The world’s major auto manufacturers are validating these predictions. General Motors, VW, Volvo, and others are making clear that petroleum-free electric drivetrains will dominate their future manufacturing investments and that future product offerings will not use transportation fuels.
At the same time, sovereign nations are intent on extinguishing demand for petroleum. England, France, Norway, Netherlands, Slovenia, India and China have announced their intentions to ban future sales and, in some cases, the use of vehicles with internal combustion engines. Ireland has gone even further, announcing that it will divest its sovereign interest in all oil, gas and coal.
And while Enbridge boasts that it transports 63 percent of all Canadian oil to the United States, Big Oil sees the writing on the wall. Seven international oil companies – Exxon Mobil, Conoco Phillips, Statoil, Koch Industries, Marathon, Imperial Oil and Royal Dutch Shell – will not need Enbridge’s future pipeline services as they have announced that they are writing off tar sand assets in Alberta.
The confluence of these trends will result in demand for transportation fuels declining precipitously, rendering a Line 5 tunnel project a costly albatross.
Third, climate change is the elephant in the room. Continued investment in fossil fuel infrastructure is fundamentally at odds with the global consensus on the urgent need to reduce greenhouse gas emissions. The findings of our National Climate Assessment are unambiguous – decarbonization of the global economy is an imperative, entailing a “fundamental transformation of the global energy system” to one that is no longer dependent on fossil fuels. As the need to address climate change becomes more acute, new pipelines proposals will be met with the scrutiny they deserve.
Finally, we should all be able to agree that there are exceptional places and natural features that are deserving of special protections. Just as we would not allow a foreign corporation to build a tunnel under the Grand Canyon, the Great Lakes should be off limits to fossil fuel infrastructure.
Our Great Lakes are a globally-unique natural resource, the largest interconnected freshwater system in the world, containing 84 percent of all surface water in North America. Recognizing that certain natural resource endowments are invaluable and irreplaceable gifts of nature, both state and federal law already prohibit all oil and gas development, even if done laterally from inland areas.
Skip Pruss, FLOW Chair
Building a tunnel to perpetuate Line 5 makes little economic or environmental sense. The decisions we make about how to use and protect our freshwater seas will ultimately be judged on whether they do or do not protect the ecological, social, cultural, and economic interests of future generations.
Simply put, our Great Lakes merit extraordinary protection, and their bottomlands must be off limits to oil and gas pipelines.
Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”
The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.
But Sellek’s comment obscures the more important issue: Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5. What is more, there is legal precedent for such action.
In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America. The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.
The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.
Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.
The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine. These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.
In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5. The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people. And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.
Line 5 is showing a number of red flags. Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims:
Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
Anchor strikes that have dented the pipeline in three locations.
These facts support a finding that Line 5 poses an imminent risk. Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm. A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron. And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.
Line 5, if it continues to operate, will fail eventually. It is unscientific and reckless to suggest that it can function indefinitely. While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.
So, what was the result of Attorney General Kelley’s action in 1986?
The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands. Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.
Skip Pruss, FLOW Chair
The result: A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF.
As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands. It is time for Schuette to act on Line 5, not make excuses.
FLOW’s organizing principle is the public trust doctrine. What sounds like an exotic concept is quite simple. This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned. Rather, this commons – including the Great Lakes — belongs to the public. And governments, like the State of Michigan, have a responsibility to protect public uses of these resources. We explicitly address public trust concerns on what we’re calling Public Trust Tuesday. Today’s thoughts are from FLOW’s board chair, Skip Pruss.
“We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.” Ban Ki-moon
It’s time that we better manage our natural resources by broadly applying the Public Trust Doctrine.
Our water, air, and other public resources are facing multiple threats and unprecedented challenges. The threats to our environment are complex and systemic, and current government efforts are inadequate and ineffective. The public trust doctrine provides government with a framework to identify, comprehend, and address environmental threats at their root cause.
Last week at World Economic Forum (WEF) in Davos, Switzerland, political and business leaders, social activists, and philanthropy came together to assess the current state of the world and prioritize problems and solutions.
To inform the discussions of the attending global elite and set the agenda, a series of reports issued including Harnessing the Fourth Industrial Revolution for Life on Land and The Global Risk Report 2018. The former indicates that a survey of earth systems science finds that stresses on the planet’s environmental systems have worsened considerably in the last 25 years. The Global Risk Report – which has measured and categorized global risk annually for the last 13 years – found that environmental challenges from water scarcity, climate change, biodiversity loss, and pollution of air, soil and water now pose the greatest global dangers in terms of both potential catastrophic impacts and imminent threats.
The WEF warns that governments thus far are ill-equipped to respond to complex interactions and systemic threats that can quickly cascade into calamitous and costly events.
In the Great Lakes Region, the WEF’s warnings are validated by new emerging science:
Just published research has found the presence of neonicotinoid insecticides – associated with bee mortality – in 10 major tributaries to the Great Lakes.
The Department of Health and Human Services warns that rising temperature and climate change in Michigan will result in more flooding, stormwater overflows, erosion, nutrient loadings, harmful algal blooms, and water-borne diseases.
A broader approach to address these growing systemic threats is needed; one that focuses on the public interest and on protecting human health and the environment as a fundamental guiding principle.
The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our wellbeing and must be protected from impairment and degradation.
Our nation’s highest courts have long embraced the public trust doctrine as an overarching legal principle. In a landmark case involving Lake Michigan, the United States Supreme Court spoke unequivocally to government’s fundamental duty to protect public trust resources:
“The State can no more abdicate its trust over property in which the whole people are interested like navigable waters and the soils beneath them…than it can abdicate its police powers in the administration of justice and the preservation of peace.”
The Michigan Supreme Court has found that the doctrine establishes a “high, solemn and perpetual duty” of proactive environmental stewardship. The protections afforded by the public trust doctrine are recognized by Michigan’s Constitution, which states: “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.”Wisconsin’s highest court has found that the public trust doctrine “requires the law-making body to act in all cases where action is necessary, not only to preserve the trust but to promote it,” and has applied the doctrine to protect public rights in sailing, rowing, canoeing, bathing, fishing, hunting, skating, and “scenic beauty.” California’s highest court has found that the doctrine demands that the best science must inform government’s responsibility to protect public trust resources and that prior governmental decisions must even be reexamined in light of new scientific knowledge if such information indicates public trust interests are affected.
The Public Trust Doctrine at Work
Our nation’s courts have been clear and unambiguous, stating repeatedly that the public trust doctrine creates an affirmative legal duty to protect public resources from degradation and impairment. So how might government apply the public trust doctrine to address complex and challenging environmental threats?
The doctrine operates as a shield to prevent activities that impair the public’s interest in public trust resources or conveys public rights in public trust resources to private parties. But beyond that, the public trust doctrine also empowers local, state and national governments to proactively manage and supervise activities that threaten public resources.
It provides, for instance, government with legal authority to require septic systems to be inspected and repaired if they are failing. If fish or aquatic resources are threatened by harmful wastes or chemicals, government is empowered to stop the pollution at its source. When it was found in the 1980’s that the operation of the Ludington Pump Storage Facility killed large numbers of fish in Lake Michigan, the then attorney general asked the courts to require measures that abated the fish mortality. The Michigan Court of Appeals stated, “Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.”
Similarly, Attorney General Bill Schuette could bring and action to close Line 5, the 65-year-old oil pipeline crossing the Straights of Mackinaw, because it presents a known catastrophic risk to public trust resources and waters of the Great Lakes.
The public trust doctrine could be used to address climate change by requiring utilities to transition to available, low-cost, zero-carbon energy resources. Because clean energy is now widely acknowledged to be the energy source of the future, there is no good reason to allow the continued loading of acid gases, heavy metals, and carbon pollution into our Great Lakes, rivers and streams.
The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious. The doctrine could provide a means of directly countering the present actions of the federal government to dismantle environmental laws and regulations. The doctrine can also enable communities to maintain high standards for the protection of natural resources and environmental values while being proactive in preventing problems before they arise.
The public trust doctrine is uniquely compelling as a means to address large-scale complex problems. With so much at stake, a broad application of the public trust doctrine is needed now.
I am among the lucky ones, as is my neighbor, Tom Shaver, who has said more than once that he pinches himself as a reminder not to take living next to Lake Michigan for granted. Like most of my neighbors, Tom has a deep appreciation for the awesome grandeur and natural majesty of Lake Michigan; its morning brilliance, stunning sunsets, ever-changing moods, and the sounds and fury of its winds and storms.
I savor the opportunity to introduce strangers to the Great Lakes – folks from outside the Midwest or from other countries who have never had occasion to experience the Lakes up close. They are invariably impressed, if not astonished. “How come I can’t see the other side?” is a common question. “You mean there is no salt?” asked an exchange student from Montenegro.
We are so fortunate as Michiganders to live in the heart of these extraordinary fresh water seas. The Lakes are a phenomenal geologic anomaly and a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are globally unique. Harboring 84 percent of all fresh surface water in North America, the Lakes provide direct health, economic, environmental and ecological services to 40 million people.
As science measures the lifecycles of freshwater bodies, the waters of the Great Lakes are largely considered both young and pristine, but the geologic timeline only obscures the many immediate challenges facing the Great Lakes.
The Lakes’ complex, dynamic ecosystems endure a growing list of human impacts. Nutrient loadings from industrial farming propagate algae, stormwater overflows discharge human waste, and elevated water temperatures transform ecosystems – all injurious impacts exacerbated by climate change. New science reveals that fish and other aquatic life are affected by recently discovered, yet ubiquitous, pharmaceutical chemicals and microplastics still concentrating in our waters. Invasive species, shoreline development, and non-point source pollution present intractable, long-term challenges. Commodification and privatization of the waters of the Great Lakes present serious future risks.
The threats to the Great Lakes are manifold, diverse and systemic. Meeting these threats requires concerted action by informed citizens and responsible government operating with common purpose and employing common strategies. It requires citizens and government policy-makers who understand that the Great Lakes – their waters, bottomlands and shorelines – belong to all of us, and that government has a clear legal duty to protect and preserve the Great Lakes for the benefit of the citizens they serve.
FLOW’s mission is to safeguard the Great Lakes through strategic application of the Public Trust Doctrine. The PTD establishes three principles that are deeply embedded in our jurisprudence:
The Great Lakes are owned by the people;
The people’s ownership interest is held in a legal trust for the benefit of the people;
Government has a “solemn and perpetual” fiduciary responsibility to protect and preserve the trust for future generations.
With public ownership comes special duties of stewardship for both citizens and government – duties that are reciprocal and interdependent: Citizens have the responsibility of protecting and preserving this natural endowment for future generations through vigilance, holding government accountable, and demanding sound policy. Government has a corresponding duty as trustee and fiduciary to ensure that the public’s interest in the Great Lakes is not injured, diminished, or alienated.
The Public Trust Doctrine is a foundational principle that has long informed the development of our environmental laws. It is also a paradigm that can and should be extended to imminent societal challenges like water scarcity and climate change.
Skip Pruss, FLOW Chair
FLOW’s unique contribution is to use the Public Trust Doctrine to cultivate principles of good stewardship by increasing public awareness and knowledge of the Great Lakes, by nourishing the mutual inclination of citizens and government to protect the waters of the Great Lakes, and by undertaking strategic actions based upon the doctrine to advance model policies that yield real world solutions.
Protecting and preserving the integrity of our water resources is our common bond and shared responsibility to future generations.