Author: FLOW Editor

“Standing” Up for the Great Lakes

FLOW's former legal intern Courtney Hammer

Some gifts come after the lights and music of the holiday season drift into the snowy weeks of the New Year.  We at FLOW are delighted to share a gift just sent to us from Courtney Hammer, our first legal intern, who spent the summer of 2014 here in Traverse City helping us research law and policy on Line 5, the emerging Detroit water-shutoff crisis, Great Lakes water issues like the Waukesha “straddling community” diversion, fracking and excessive water loss, and on FLOW’s groundbreaking advancement of the public trust doctrine and principles for the Great Lakes and watersheds in the 21st century.

Courtney went on to graduate from the Michigan State University College of Law, where she also was Notes Editor at the Michigan State Law Review.  She now works in Florida. To our great surprise, she just sent us a copy of the publication of her in-depth article recently published by Michigan State Law Review: Standing Under the Great Lakes Compact: A Broad-Based Argument Infused with Public Trust Principles for those with Diversion Aversion.[1]

Courtney offers an important contribution to the legal literature on standing—the rights of citizens who are “aggrieved” through actual or threatened harm to interests in or uses of the Great Lakes—after the first decade of the diversion ban, exceptions, and bottled water exports under the Great Lakes Compact. It’s very gratifying for us at FLOW that Courtney first learned as our intern about the Compact and the public trust doctrine, a body of law that protects the rights of all citizens, as beneficiaries, to demand that governments protect the Great Lakes and all waters that flow through or life from harm or private control now and for future generations.  

The Compact authorizes “aggrieved persons” to appeal to the courts when a decision made by the Council of Great Lakes Governors or Regional Body violates the diversion ban or other provisions of the Compact.  If citizens cannot participate and appeal to the courts when things go awry and the future of the Great Lakes is threatened, they cannot very well exercise their rights to force government to comply with its duty to protect the paramount public trust interests shared by all of us. 

What Courtney has done is connect the “aggrieved person” standard for standing, sometimes construed narrowly against citizens, with the public trust doctrine in the Great Lakes. It is well established that the waters of the Great Lakes Basin are impressed with this primary protection. The Supreme Courts of all eight Great Lakes states have said so for over 100 years.  The U.S. Supreme Court said so in 1892 in prohibiting the transfer of nearly one square mile of Lake Michigan to a railroad company. The Compact says so through a finding that the waters of the Great Lakes Basin are a “precious resource held in trust for the benefit of citizens.”[2]  

Jim Olson, President and Founder

If these waters are subject to the public trust doctrine and citizens’ right to protect themselves and these waters from impairment or transfer for private gain, then why, she asks, shouldn’t the “aggrieved person” standard for standing be as broad as the rights to protect the public trust in the Great Lakes?  After careful analysis of the law and the Compact in the context of a world water crisis, Courtney concludes that an “aggrieved person” includes a citizen whose rights in water for drinking, swimming, boating, navigating, and bathing are covered by the public trust doctrine. The Compact is entirely about protecting the Great Lakes.  A person who is a legal beneficiary under the public trust doctrine should have standing to protect the public trust as an “aggrieved person.”

Courtney, we congratulate you, as well as our FLOW supporters and readers of our writings, legal reports, and articles.  It is heartening to realize that our work spreads out like the ripples from a stone thrown into a lake, concentrically towards circumscribing and protecting the Great Lakes as common waters for all.  Courtney’s article demonstrates how our shared efforts to protect the Great Lakes work together for the common good.  Thank you, Courtney. Thank you, supporters. (P.S.  Full disclosure: I’m doubly thankful and proud because Courtney is my niece).

[1] Courtney Hammer, Standing Under the Great Lakes Compact: A Broad-Based Argument Infused with Public Trust Principles for those with Diversion Aversion, 2018 Mich. St.. L.  Rev.251 (2018).

[2] Great Lakes Compact, Pub. L. No. 110-342, Sec. 1.3(1) (a).


“No Stricter” Makes No Sense for Michigan’s Environment, Public Health

Of all the blows former Governor Rick Snyder and the lame-duck Legislature delivered in late 2018 to Michigan environmental policy, one stands out — a new law intended to thwart state rules that go beyond weak federal minimums. This seemingly abstract law in fact repudiates 50 years of efforts by state officials to act in defense of the people of Michigan and the Great Lakes.  It is an insult to the legacy of citizens and agencies who decided to act while Washington either couldn’t or wouldn’t, protecting us from toxic DDT, PCBs, CFCs, chlordane and more.

Here’s the heart of the “no stricter than federal” law, Public Act 602 of 2018 (originally House Bill 4205):

  • If the federal government has mandated that Michigan promulgate rules, no Michigan state agency can adopt or promulgate a rule more stringent than the applicable federal standard unless the director of the agency determines that there is a clear and convincing need to do so or in the case of emergencies.  Emergency rules remain in effect no more than a year. 
  • If the federal government has not mandated that Michigan promulgate rules, an agency cannot adopt or promulgate a rule more stringent than an applicable federal standard unless specifically authorized by a state law or unless the director of the agency determines that there is a clear and convincing need or in the case of emergencies.

Why does this matter?  Two environmental crises during the Snyder Administration demonstrate the impact.  After the poisoning of Flint’s drinking water, Snyder insisted that Michigan should set the nation’s most stringent standard for lead in drinking water.  By 2025, Michigan’s standard will be 12 parts per billion.  The federal standard is 15 parts per billion. 

His reasoning was in part based on the fact that experts agree there is no safe level of lead in drinking water and that Michigan should not settle for a federal minimum.  “As a state, we could no longer afford to wait on needed changes at the federal level, so Michigan has stepped up to give our residents a smarter, safer rule – one that better safeguards water systems in all communities,” Snyder said in a news release.

After the discovery of widespread PFAS contamination in waters across the state, the Snyder Department of Environmental Quality in January 2018 established a cleanup criterion for two compounds of 70 parts per trillion.  At the time — and this is still true — there was no federal cleanup criterion.  Other states have established significantly more stringent standards.

Public Act 602 does not apply retroactively, so it will not undermine the lead and PFAS rules.  But it is a vivid illustration of the need for Michigan to exercise its independent judgment of the kind of protection its citizens and environment needs — and of the inconsistency of former Governor Snyder, who vetoed a bill much like the new Public Act 602 in December 2011.  At the time, he said the “bill would inhibit the state’s ability to work with businesses and citizens to ensure that our regulatory structure fits Michigan’s unique profile.”

That rationale has not changed.  In fact, with the Trump Administration rolling back existing federal environmental rules and refusing to implement new ones, the need for state authority to act on behalf of Michigan’s “unique profile” is urgent.

The exception provided in the new law — when there is a “clear and convincing need” to go beyond federal standards — sets a very high bar.  Legal experts say that this language would leave stronger-than-federal rules vulnerable to legal attack by polluters and others who oppose Michigan taking leadership in environmental protection.

As FLOW Board Chair Skip Pruss says, the State of Michigan is steward of “a natural endowment existing nowhere else in the world and meriting special protections. Under this law, we are effectively prohibited from affording any future regulations that may be needed to safeguard this extraordinary freshwater legacy.”

There is some hope, as FLOW Founder Jim Olson has observed, that this legislatively imposed regulatory strait jacket will be found to violate Michigan’s 1963 Constitution, which mandates that the Legislature “shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” Public Act 602 does the opposite.

Fifty years ago this spring, Michigan became the first state to cancel most uses of the toxic pesticide DDT, acting out of an abundance of concern about the impact of consuming contaminated fish.  The state acted because it is surrounded by the world’s most magnificent fresh waters and because it was not willing to settle for a sluggish federal regulatory response.  Time has vindicated the state’s action in 1969.  The new law signed by Snyder is a betrayal of that legacy.


FLOW Supports Gov. Whitmer’s Request for a ‘Line 5’ Opinion from Attorney General


FOR IMMEDIATE RELEASE:                                                                                         January 2, 2019

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


FLOW Supports Gov. Whitmer’s Request for an Opinion from Attorney General on Legality of Hastily Crafted Law and Side Agreements on ‘Line 5’ Oil Pipelines and Proposed Tunnel in Mackinac Straits


The following statement can be attributed to Jim Olson, environmental attorney, founder, and president of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“This first and immediate step by Gov. Gretchen Whitmer in a letter asking Attorney General Dana Nessel for an opinion on Public Act 359 is critical in unpacking the layers of problems with the newly enacted law, any tunnel agreement, and most importantly the massive threat posed by the existing Line 5 in the Straits of Mackinac, a threat that must be ended in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes.”

“In the last three weeks of 2018, then-Gov. Rick Snyder, the Department of Environmental Quality, and Department of Natural Resources signed agreements to enable Enbridge to construct a tunnel that the state would own and lease to Enbridge for 99 years for a new crude oil pipeline under the waters and in the soils of the bottomlands of the Straits of Mackinac. In order to finalize the deal before the end of the year, the Republican-controlled legislature during the lame-duck session rushed through a law—Public Act 359—that set up a Mackinac Straits Corridor Authority to sign the tunnel deal with Enbridge and guarantee the transfer of publicly owned and controlled Great Lakes bottomlands and other financial benefits to Enbridge for private gain, the 99-year privately owned pipeline.

“During this same time, Governor Snyder, the DEQ, DNR, and Enbridge without public review finalized a separate agreement that would give Enbridge the right to continue using its existing dangerous and flawed Line 5 pipelines in the open waters of the Mackinac Straits for another 10 years, or as long as it takes to complete the tunnel and install the new pipeline.

“Everyone agrees that the release of oil to the Great Lakes would cause massive harm to those waters, as well as businesses, communities, property owners, tribal fishing rights, and the public’s paramount rights for fishing, boating, and recreation protected by the public trust doctrine – an ancient principle that prohibits the transfer of public lands and waters without compliance with laws that assure a public purpose and no imprudent risks to health, environment, and property.

“Public Act 359, coupled with the State’s public entanglement with Enbridge, puts private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes.  The law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes. Act 359 and these agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.

“Public Act 359 and the agreements are peppered with other serious problems, most of which are covered by the questions the Governor has asked the Attorney General to answer.  These include:

  • Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
  • Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
  • Violating provisions of the state constitution that prohibit fostering private or special purposes, the comingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.

“We hope this critical first step by the Governor and Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Mackinac Straits, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the Great Lakes.”


A 2019 Resolution to Reverse Michigan’s Anti-Environmental, Lame-Duck Lunacy

It’s January 2019, and it is time to unpack and undo the anti- water, air, environment, public health, and community laws passed by the Republican-run Legislature and signed by Michigan Governor Rick Snyder in the last two months of 2018. Lame-duck lawmakers and now ex-Governor Snyder blatantly followed a hit-list prepared by far-right, big business-supported organizations that plot ways to put their own self-interests and economic gain above all else – including our air, water, and natural resources.

Now that it is 2019, and Governor Gretchen Whitmer and Attorney General Dana Nessel have been sworn in, and a slightly changed legislature has returned to Lansing, is there anything that can be done about this unprecedented, massive rollback of laws that protect our state’s air, water, and natural resources from pollution, impairment and destruction?

The answer is: “yes.” Here’s why. When Michigan constitutional convention delegates approved and citizens adopted our current state constitution in 1963, two provisions imposed mandates on the Michigan legislature when considering and voting on bills before they become law. Michigan Constitution Article IV, Section 52 declares:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction. [Emphases added]

This constitutional provision demands that the state’s air, water, and natural resources are treated and protected as “paramount,” which means “above all else.” In 1970, the legislature responded by passing the Michigan Environmental Protection Act. The MEPA, as it is known, charged the courts with hearing the coming controversies between citizens and polluters, or between citizens and state and local governments, when they failed to act to protect the public’s use and enjoyment of the air, water, natural resources, and the public trust in those resources. Affected citizens were granted the right to bring civil lawsuits in our circuit courts to protect our environment and the public trust from likely harm, and to force polluters and government to choose alternative courses of action that would not likely harm the environment.

On the heels of the MEPA’s passage, the legislature approved a number of landmark laws to protect our water and environment, including the Inland Lakes and Streams Act, the Wetlands Protection Act, the Solid Waste Management and Hazardous Waste Management Acts, the Natural Rivers Act, and the Wilderness and Natural Areas Act. In two test-cases in 1974 and 1975, the Michigan Supreme Court ruled that Article IV, Section 52 is self-executing, which means that the section imposes a mandatory duty on the legislature and government to pass laws that protect the air, water, and environment and public health from harm.[1] In the first, the Supreme Court halted an expressway in southeast Michigan because the highway department had failed to comply with its duty to consider the effects on the environment and the alternatives that may be available or feasible to accomplish the same purpose as the expressway. In the following year, the Court in 1975 stopped a county drain project because a drain commissioner failed to fulfill his duty to prevent water pollution in approving and implementing the project.[2] The Court ruled that the MEPA and laws like it that protect the environment constitute a response to the constitutional mandate.

As a result, in 1990, the Michigan Legislature put into place a “polluter pay” law that imposed strict liability on those who for far too long dumped, released, or discharged toxic chemicals into our air, water, and soil. This law, too, followed the legislative mandate to pass laws that protect the air, water, and environment under Article IV, Section 52 of the constitution. Unfortunately, in 1995, the Legislature and Governor John Engler weakened the “polluter pay” law in defiance of the constitution. But  the courts have continued to uphold the MEPA, and protection of our wetlands, rivers, lakes, Great Lakes, endangered species, wilderness areas, and special places such as the Pigeon River Natural Area from oil and gas development.

In late 2018’s lame-duck feeding frenzy, the legislature and Governor Snyder did just the opposite: they enacted laws that repealed or weakened the pollution and environmental standards and responsibilities imposed by the legislature in the past 50 years in response to the constitutional mandate of Article IV, Section 52. For example, the lame-duck hit-list includes:[3]

  • A ban on state laws that are stricter than federal air, water, and environmental standards, unless there are clear and convincing exceptional circumstances. The federal government is in the process of dismantling mercury and other toxicity standards, wetlands regulations, water quality standards, and protection of parklands and water resources from off-shore oil and gas or mineral developments.
  • A law that would “overhaul” (a euphemism for “repeal” or “gut”) state standards for requiring cleanup of hazardous and toxic pollution land and groundwater sites throughout Michigan. The attack on the “polluter pay” provision and weakening of cleanup standards has been going on for 20 years, but this latest hit is a decision to keep thousands of toxic chemical sites unabated, and an invitation for industry to pollute by discharging and releasing chemicals at higher rates because they no longer require cleanup.
  • A law that changed the definition of wetlands in order to remove thousands of acres of wetlands from protection, at a time when extreme weather events fueled by greenhouse gases, like the catastrophic flooding in the Upper Peninsula last fall, demand more wetlands protection.

Jim Olson, President and Founder

What the legislature and Governor Snyder have tried to do is to strip our new governor and our state agencies’ power to pass regulations to protect the air, water, and environment as required by Article IV, Section 52. The Republican-controlled lame-duck legislature and Governor exceeded their authority and violated the mandate to pass laws that “protect the air, water, and natural resources from pollution.” These laws don’t protect the environment; they hasten to pollute and destroy it. These laws are unconstitutional. I call on our new Governor Whitmer and Attorney General Nessel, our newly seated legislators, and citizens to take immediate steps, including lawsuits if necessary, to void or refuse to apply these laws that violate our constitution’s mandate to protect the public’s paramount interest in our air, water, natural resources.


[1] Highway Department v Vanderkloot, 392 Mich 152 (1974).

[2] Ray v Mason County Drain Commissioner, 393 Mich 294 (1975).

[3] See Jim Malewitz, Bridge Magazine, December 28, 2018, https://www.bridgemi.com/michigan-environment-watch/gov-snyder-signs-michigan-lame-duck-bills-opposed-environmentalists.


The Forgotten Great Lake?

Photo credit: Dave Dempsey

The idea that Lake Huron is an overlooked or forgotten lake has even seeped into our government. A report issued by the Michigan Department of Environmental Quality posed the question whether Huron is a victim of amnesia.

It’s not the biggest Great Lake, the dirtiest, the most populated or the purest. It’s just unlike any other lake on earth.

It’s probably most forgotten because relatively few people surround it and therefore are closely associated with it.  If there were such a statistic as person-hours of remembering, Huron would score low.

Even the most spectacular features of Huron can be easy to overlook.  Twenty years ago, I spent considerable time with a friend searching for the dwarf lake iris at Thompson’s Harbor State Park.  An exquisite miniature, the iris grows in all the world primarily on the shores of northern Lower Michigan and richly deserves its title as the official state wildflower.

Dave Dempsey, Senior Advisor

It benefits from Huron and the cool, moist lakeshore air, and sand or thin soil over limestone-rich gravel or bedrock. Like any plant or animal whose prime habitat is the shoreline, the subtle dwarf lake iris is threatened.

More people should know Lake Huron, enjoy it and respect it.  It need not be the best kept secret in the Great Lakes.

 

 


 

Fire Sale! One Day Only! Get Your Share of the Great Lakes While Supplies Last.

FOR IMMEDIATE RELEASE:                                                                                      December 20, 2018

Liz Kirkwood, Executive Director                                                                Email: Liz@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                         Web: www.FLOWforWater.org Office: (231) 944-1568, Cell: (570) 872-4956


The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:

“The decision on Wednesday by the Mackinac Straits Corridor Authority board was nothing less than a Snyder administration fire sale of Great Lakes public trust waters and bottomlands that defies Michigan law, tribal treaties, climate science, democracy, and the will of the people. Make no mistake: This proposed oil tunnel fails to solve the greatest threat facing the Great Lakes — the decaying Enbridge Line 5 oil pipelines in the Straits of Mackinac. Claiming that a tunnel that would take up to 10 years to build will prevent an oil spill disaster that grows more likely every day is like claiming that the best way to diffuse a ticking time bomb is to wait a decade to see if it actually explodes. No amount of spin that the oil tunnel is somehow meant to benefit the public can hide the unconstitutional nature of the law that the legislature rammed through to form a public body for a primarily private purpose – commercial transport of oil from western to eastern Canada. It represents a total abdication of the state’s perpetual and paramount public trust duty to the citizens of Michigan in favor of a private Canadian corporation whose uninterrupted oil transport and profit threatens 95 percent of America’s fresh surface water supply. This rushed and unlawful process will not survive a legal challenge.”


Snyder Administration Knowingly Violates State Law, Constitution in Race to Seal ‘Line 5’ Oil Tunnel Deals


FOR IMMEDIATE RELEASE:                                                                                         December 18, 2018
Liz Kirkwood, Executive Director                                                               Email: Liz@FLOWforWater.org
FLOW (For Love of Water), Traverse City, MI                                        Web: www.FLOWforWater.org Office: (231) 944-1568, Cell: (570) 872-4956

Wednesday’s meeting in St. Ignace of tunnel authority board is a sham process that increases risk of a Great Lakes oil spill

Traverse City, Mich. – In a rush to give away public land, water, and taxpayer resources to the private Canadian pipeline company Enbridge before departing office in 13 days, Gov. Rick Snyder and his administration are knowingly taking steps that trample Michigan law and openly violate the state constitution, while locking in at least a decade of increasing risk of a pipeline oil spill into the Great Lakes and the drinking water supply for millions of people, said FLOW (For Love of Water) today in formal public comments sent to state officials.

FLOW’s letter comes at the deadline of a meager 3-business-day public comment period set last Thursday by the state to review a complex set of proposed legal agreements between and among the State of Michigan, Enbridge, and the just-formed Mackinac Straits Corridor Authority.

Members of the public can submit comments by today (Dec. 18) to DNR-StraitsTunnelComment@michigan.gov or by telephone at 833-367-6713. In addition, on Monday in response to a request from FLOW, the state released the already executed easement from the Michigan Department of Natural Resources to the Mackinac Straits Corridor Authority and the assignment to Enbridge, without public review and public trust application.

“The agreements and proposed actions that the State of Michigan is seeking to ram through represent an abandonment of the requirements and duties imposed upon the state as trustees of our public trust resources, including publicly owned Great Lakes waters and bottomlands,” said Liz Kirkwood, executive director of FLOW, the Great Lakes law and policy center based in Traverse City. “This is a critical moment in the history of the State of Michigan and the Great Lakes.  We urge the Snyder administration to pause, engage the public and these critical concerns meaningfully, and reflect on what is at stake for this and future generations.  There need not be a rush to judgment when 20 percent of the available surface freshwater of the world is at stake.”

The Snyder administration is hastily drafting and signing laws and legal and fiscal agreements designed to last 99 years, racing the clock before Snyder’s term ends on December 31 and a new governor and attorney general take office who oppose the oil tunnel and the continued operation of Enbridge’s decaying Line 5 oil pipelines in the Straits of Mackinac. The agreements are predicated on the newly passed Public Act 359 (was Senate Bill 1197) to authorize a private oil tunnel that would be owned by the State of Michigan and leased for 99 years to Enbridge. P.A. 359 amends the 1952 law establishing an authority to build the Mackinac Bridge as a time machine to go back before the state Constitution of 1963 and modern public trust and environmental laws – including the 1955 Great Lakes Submerged Lands Act.

The governor-appointed Mackinac Straits Corridor Authority board will meet for the first time on Wednesday, December 19, in St. Ignace to rubber-stamp the state’s agreements with Enbridge, which were released on December 13. FLOW, and the Oil & Water Don’t Mix campaign that FLOW helps direct, have called the authority board and tunnel approval process a sham.

FLOW and our allies have condemned the rushed and slipshod crafting of the legislation creating the governing authority, the unconstitutional nature of the law itself in forming a public body for a primarily private purpose – the private transport of oil from western to eastern Canada, the law’s explicit attempt to tie the hands of the next governor and attorney general, the secret drafting of public agreements with a private foreign company, the real risk to taxpayers and the fiscal integrity of the Mackinac Bridge, a taxpayer-supported legal defense fund for Enbridge’s proposed tunnel, and the complete lack of a meaningful public comment and engagement process.

The proposed tunnel, to be completed in 7 to 10 years, means Enbridge will continue to pump 23 million gallons of oil a day through an extremely risky Line 5 pipeline in the Straits of Mackinac—just one more anchor strike or failure of the decaying pipelines from an oil spill catastrophe.  The tunnel does nothing to address the current, unacceptably high risk and estimated $2 billion to $6 billion in damages to the Great Lakes, the shoreline communities, tourism and businesses, and property owners, as well as a potential $45 billion blow to the nation’s Gross Domestic Product after just 15 days, if a Line 5 oil spill shuts down the shipping of iron ore for the steel industry, according to a report FLOW commissioned.

This is a critical moment in the history of the State of Michigan and the Great Lakes.   Our leaders must put the interests of the Great Lakes and its people and of the tribes first by avoiding a catastrophic oil spill and by planning for our energy transition without Line 5 in the Straits and 400 other Michigan water crossings. The Canadian oil, which Enbridge does not own, can be sent through other pipelines operated by Enbridge and its competitors. Michigan has no obligation to guarantee Enbridge a shortcut to Ontario oil refineries and the overseas export market.


Line 5, Lame Duck Legislature Threaten Michigan’s Waters and Way of Life

With four days remaining until the Michigan Legislature is scheduled to adjourn and 14 days until the inauguration of a new governor, environmental rollbacks still threaten Michigan’s waters and values. 

To help FLOW and many allied groups fight back, please read the bill summaries below, and – for greater detail – click on the links to review the bill text and any state-prepared analysis. And then call or email your State Senator (find that information here) AND your State Representative (find that information here) to voice your opposition to these bills. And if you live outside Michigan, but spend some of your time and money in the Great Lakes state appreciating its lakes, streams, forests, and other natural resources, please let Michigan’s Senate leadership and House leadership know your concerns. Thank you!

At this writing, it appears likely the Michigan House of Representatives will consider two measures that could cripple protection of Michigan’s environment and human health:

  • Senate Bill 1211 would remove state protections from over 500,000 acres of wetlands, more than 3,000 lakes and over 20,000 miles of streams.
  • Senate Bill 1244 would handcuff state DEQ scientists in setting standards for toxic cleanups, preventing them from using the latest science on human health effects — and preventing them from protecting pregnant women and their unborn children unless the US EPA has already acted.  In the form it passed the Senate, SB 1244 could weaken Michigan’s already too-soft toxic PFAS cleanup standard from 70 parts per trillion to as much as 300 parts per trillion.

Meanwhile, Governor Rick Snyder will soon have to decide whether to sign House Bill 4205, the “no stronger than federal” legislation already approved by the Legislature:

  • HB 4205 would bar the state from going beyond federal minimum standards in environmental protection and other areas unless it met a very high burden of proof.  Such a measure could have prevented Michigan from exercising its historic leadership in protecting the environment by acting on DDT and other pollutants from the 1960s through the 1980s.

An even bigger threat to Michigan’s waters and economy is the fate of Enbridge’s Line 5 pipelines at the Straits of Mackinac: 

  • Public Act 359 (was Senate Bill 1197) was signed into law by Gov. Snyder on December 12. The law is part of his last-ditch effort to allow Enbridge Energy to operate its risky Line 5 oil pipelines in the Straits of Mackinac for another decade while a private oil tunnel is considered as a replacement. The law places either the Mackinac Bridge Authority and/or the newly created Mackinac Straits Corridor Authority in charge of oversight and ownership of the proposed tunnel, which Enbridge would lease for up to 99 years, and has the potential to expose the state and the taxpayers of Michigan to liability if it ever results in a spill, explosion, or other accident impacting the Great Lakes, the Pure Michigan economy, and the shipping of iron ore critical to much of the nation’s steel production and related industry.

The governor-appointed Mackinac Straits Corridor Authority will meet for the first time on Wednesday, December 19, in St. Ignace to rubber-stamp the state’s agreements with Enbridge, which were released on December 13, allowing just three business days for the public to review and comment. FLOW will be submitting detailed legal and technical comments, and we encourage the public to submit comments for the official administrative record, which is important in the event of litigation or other challenge to the tunnel decision.

Comments on the Line 5 oil tunnel agreements can be emailed by Tuesday, December 18, to DNR-StraitsTunnelComment@michigan.gov or left by telephone at 833-367-6713.

FLOW staff members, however, are not planning to attend the December 19 meeting of the Mackinac Straits Corridor Authority because it is a sham, including the rushed and slipshod crafting of the legislation creating the governing authority, the unconstitutional nature of the law itself in forming a public body for a primarily private purpose – the private transport of oil from western to eastern Canada, the law’s explicit attempt to tie the hands of the next governor and attorney general, the secret drafting of public agreements with a private foreign company, the real risk to taxpayers and the fiscal integrity of the Mackinac Bridge, and the complete lack of a meaningful public comment and engagement process.

We are continuing to make the public aware of the December 19 meeting of the Mackinac Straits Corridor Authority so that each individual, business, local government, tribe, or organization can be fully informed and make their own best decisions regarding whether to attend.

The state’s official notice is here, and notice from the Oil & Water Don’t Mix campaign is here. In addition, just today in response to a request from FLOW, the state released the already executed easement from the Michigan Department of Natural Resources to the Mackinac Straits Corridor Authority and the assignment to Enbridge prior to public review and public trust application.


Departing Governor and Lame Duck Legislature Speed toward 99-Year Oil Tunnel Scheme, Leaving Mackinac Straits at Risk from Line 5 Pipelines




FLOW Executive Director Liz Kirkwood testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.
FLOW Deputy Director Kelly Thayer testifying Dec. 11, 2018, at the Michigan House of Representatives Government Operations Committee.

In coordinated fashion, the Michigan’s lame-duck legislature on Tuesday and governor today opened the flood gates to a 99-year deal for a Canadian oil tunnel under the Great Lakes.

Their vision would lock in a century of oil transport through the Mackinac Straits when scientists agree that the world has a decade or so to change to renewable energy sources or face intensifying rounds of extreme storms, heat, floods, and drought from a changing climate.

Despite reasoned and compelling appeals (see video at 10:56 mark here) from businesses, environmental advocates, and current and former members of the Mackinac Bridge Authority, state lawmakers on Tuesday rushed the tunnel bill in just hours through committee and full House on a 74-34 vote and Senate 25-12, with behind strong lobbying for the tunnel by Enbridge, the Michigan Chamber of Commerce, and groups representing labor, energy, and infrastructure. (See how state Senators voted here on page 2118 and state House members here on page 2536.)

Representatives of FLOW testified against Senate Bill 1197, and were joined in Lansing by tribal leaders and leaders of Oil & Water Don’t Mix, Great Lakes Business Network, Michigan Environmental Council, Clean Water Action, Mackinac Straits Alliance, National Wildlife Federation, Groundwork Center, Friends of the Mackinac Bridge, Michigan League of Conservation Voters, Michigan League of Women Voters, Sierra Club, and more.

Today (Wednesday), Gov. Snyder signed the legislation, and then appointed the three members to the Mackinac Straits Corridor Authority Board created in the new law. The law calls for either the Mackinac Bridge Authority or the MSCA by December 21 to receive from Gov. Snyder a draft agreement with Enbridge for the authority board to sign by December 31, leaving just days to negotiate the details regarding legal, fiscal, and liability concerns tied to the state owning the tunnel and leasing it for 99 years to Canada's Enbridge.

The Governor’s latest draft agreement with Enbridge is expected to authorize the company to continue operating its decaying oil pipelines in the Straits for 10 years or more while Enbridge considers whether or not to build the tunnel. The Line 5 pipelines threaten the drinking water source for half of Michigan residents and risk a $45 billion blow to shipping and the steel industry. Line was built in 1953 and is 15 years past its life expectancy and carrying 80 percent more oil than called for in the the original design. 

The rapid-fire political moves come as departing Gov. Snyder and state lawmakers race to lock in agreements and laws to limit the choices and powers of incoming Gov. Gretchen Whitmer and Attorney General Dana Nessel, who have publicly opposed the tunnel and Line 5 continuing to pump oil through the Mackinac Straits.

Enbridge's dual Line 5 pipelines in the Mackinac Straits push up to 23 million gallons of oil and natural gas liquids daily through in the Straits of Mackinac, where Lake Michigan meets Lake Huron. Line 5, which begins in Superior, Wisconsin, and ends in Sarnia, Ontario, is a link in Enbridge's vast North America network.

Line 5 has leaked more than 30 times, spilling more than 1.1 million gallons of oil across Michigan's Upper and Lower Peninsulas. Enbridge in 2010 also caused the 1.2 million gallon spill of heavy tar sands oil into the Kalamazoo River and its watershed in southwest Michigan.

Hoping That We Won’t “Notice”… Bridge-and-Oil Tunnel Bill Moving in Michigan House on Tuesday, Dec. 11


Giving the 18-hour bare minimum amount of public notice allowed by law, the Michigan House Government Operations Committee at 8:30 a.m. on Tuesday will take up the Enbridge oil tunnel bill.

A number of lawmakers in both parties – as well as thousands of individuals, groups, businesses, tribes, and local communities – have previously raised concerns about Senate Bill 1197’s potential harm to the Mackinac Bridge, Michigan taxpayers, and the Great Lakes.

We urge you to contact the Government Operations Committee Chair, Rep. Lee Chatfield, and other members of the committee with your concerns, using the bulleted list of issues and contact information below. In addition, if your state Representative is not on that committee, you can contact your lawmaker using this lookup, in anticipation of the bill in some form clearing committee and reaching the full state House, perhaps later on the same day.

Members of the Michigan House Government Operations Committee to contact about Senate Bill 1197 right now:

  1. Lee Chatfield (R-Levering) Committee Chair, 107th District, PHONE: 517-373-2629, EMAIL: LeeChatfield@house.mi.gov
  2. Dan Lauwers (R-Brockway Township) Majority Vice-Chair, 81st District, PHONE: 517-373-1790, EMAIL: DanLauwers@house.mi.gov
  3. Tom Barrett (R-Charlotte) 71st District, PHONE: 517-373-0853, EMAIL: TomBarrett@house.mi.gov
  4. Sam Singh (D-East Lansing) Minority Vice-Chair, 69th District, PHONE: (517)-373-1786, EMAIL: samsingh@house.mi.gov
  5. Christine Greig (D- Farmington Hills), 37th District, PHONE: (517) 373-1793, EMAIL: christinegreig@house.mi.gov
Background and Concerns

After a flood of public opposition to the proposed oil tunnel being owned and run by the same state authority board that owns and operates the beloved Mackinac Bridge, the Senate made and approved quick revisions that attempted, but failed, to resolve that concern.

The very first line of the passed bill, with changes indicated in capitals in the original text, says, “An act authorizing the Mackinac bridge authority to acquire a bridge AND A UTILITY TUNNEL….” And then in a new Section 14, the bill states at the outset, “THE MACKINAC BRIDGE AUTHORITY MAY ACQUIRE, CONSTRUCT, OPERATE, MAINTAIN, IMPROVE, REPAIR, AND MANAGE A UTILITY TUNNEL.”

A few paragraphs later, the bill says that these powers over the proposed tunnel eventually will transfer to the Mackinac Straits Corridor Authority, which does not exist yet. To get past that stumbling block, the bill gives all the powers, and likely all the liability too, to both the existing Mackinac Bridge Authority and the anticipated one, and declares the problem solved.

In addition to risking the Mackinac Bridge, Michigan Senate Bill 1197:
  • Provides the key vehicle for the ill-conceived and unconstitutional Republican-led race to guarantee a private oil tunnel for Enbridge under the Mackinac Straits before January 1, when incoming Governor Gretchen Whitmer and Attorney General Dana Nessel – both of whom are Democrats and tunnel opponents – take office.
  • Gives a shareholder-owned foreign company free access to the public’s Great Lakes water and bottomlands, untold millions of taxpayer dollars for state oversight (Gov. Snyder has requested $4.5 million in public funds so far) and a legal defense fund, and some cover from liability as the state takes on ownership of infrastructure that poses a risk to leak and/or explode and cripple the regional economy, while polluting the drinking water for Mackinac Island, St. Ignace, and half of all Michiganders.
  • Anticipates draining $500,000 a year from Mackinac Bridge revenue, which is earned by allowing fiber optics to cross the bridge that instead would be moved to the tunnel.
  • Increases the odds of a catastrophic oil spill in the Mackinac Straits, where Lake Michigan meets Lake Huron, by allowing the cracked and dented Line 5 pipelines at least another decade of non-stop oil pumping through 2028, when Line 5 would be 75 years old, while Enbridge considers, but is not required to build, a tunnel.
  • Requires the as-yet non-existent Mackinac Straits Corridor Authority to approve by December 31– just 3 weeks from now – a series of agreements being negotiated by the Snyder administration in private with Enbridge for building the tunnel, deeding it to the state, and then leasing the tunnel back for 99 years. The secret process shuts out lawmakers, citizens, businesses, and tribes from the opportunity to review, understand, and oppose or strengthen the pacts to benefit the public.