Tag: Climate Change

Legal Fact from Legal Fictions


A Preface

When I sat down to finish this post this morning on the news about Michigan’s agreement with Enbridge to consider replacing an aging, dangerous Line 5 crude oil pipeline through the Great Lakes basin, I realized that what I should really be writing about is yesterday’s dire warning by the U.N.’s Intergovernmental Panel on Climate Change (www.ipcc.ch/) that if citizens, countries, communities, and businesses don’t act to reduce carbon dioxide levels by 45 percent before 2030, the world will tilt over the brink of massive destruction. We’ve been warned that the earth’s temperature must not increase more than 2 degrees C by 2050. Now scientists urge countries and citizens to mount an unprecedented historical shift in human actions to reduce that limit to 1.5 degrees C by 2030. If we do not engage in this historical shift, we but more so our children and grandchildren, will suffer untold loss. The narrative is clear: Future survival and prosperity are now dependent on enlightened water and energy policies; they are inseparable.

The IPCC report concludes that, “There is no documented historic precedent” for the scale of social and technical change that must occur for the world to survive. How ironic that our Governor and state agencies, with the advice of our Attorney General, signed a second agreement with Enbridge Energy last week to assure continued use of an aged, dangerous Line 5 in the Straits, and to propose a possible replacement tunnel in 7 to 10 years that would transport light and heavy tar sands crude for the next 99 years. Michigan should not be thinking about building a tunnel for Enbridge in the next decade, we should be taking immediate action to slash fossil fuel consumption by 45 percent.

The Michigan-Enbridge “Second Agreement”

Climate change aside, Michigan faces a serious risk of disaster from the aged, and failing original design of Line 5 in the Straits. To make sure we immediately address this risk, there are some critical realities beneath the rhetoric about the agreement that must be understood and avoided. If these realities are not avoided, Michigan citizens, communities, and businesses will face two disasters—(1) the intensity of catastrophic extreme weather from climate change and (2) an oil spill from Line 5 that would wreak massive irreparable damage and loss to Lake Huron and Lake Michigan, our drinking water, ecosystem, and economy.

  1. This is not about meeting Michigan’s needs. Our leaders signed an agreement with recitals of fact claiming that “the continued operation of Line 5… serves important public needs by providing substantial volumes of propane to meet the needs of… citizens… and transporting essential hydrocarbon products, including oil to Michigan and regional refineries.” In fact, a number of modest adjustments would deliver propane via truck, train, or 4-inch-diameter pipeline to meet the needs of our rural residents. In fact, the existing pipeline network across southern Michigan and from Pennsylvania, Ohio, and the southern U.S. will meet the crude oil needs of Michigan and regional refineries. There are sensible, less costly alternatives within this existing pipeline network that render the need for Line 5 or a tunnel under the Straits imprudent and unnecessary. A number of independent studies, including FLOW’s, and the London Economics International (LEI) have come to this same conclusion: decommissioning Line 5 is not only economically feasible but is the best alternative because it would protect Michigan’s waters and natural resources, and it would have no noticeable impact on Michigan’s economy.
  2. Enbridge’s pledge to operate consistent with its easement cannot be trusted. The agreement contains a recital that Enbridge “continues to operate and maintain such pipelines [dual 20-inch lines in the Straits] consistent with the terms of the [1953] Easement as part of Line 5.” In fact, the state and other organizations and reports have proven that Enbridge has violated its obligations in the Easement to prevent scouring of lakebed beneath the pipeline designed to lay on the bottom of the Straits, to exercise prudence in order to prevent harm to public and private property, and to provide financial assurances, among others. Unfortunately, it appears our State leaders would rather weaken the State’s ability to enforce the 1953 Easement.
  3. Near-term safety measures don’t address Line 5’s failing design. The agreement contains a recital that “near-term measures to enhance the safety of Line 5, and the longer-term measure—the replacement of Dual Pipelines—can essentially eliminate the risk of adverse impacts that may result from a potential release from Line 5 in the Straits.” However, those “near-term” measures will not address the failing design of the 65-year-old oil pipelines in the Straits. The State has allowed Enbridge to install 150 anchors, with a request for 48 more, to elevate the dual lines above the lakebed as a “repair” or “maintenance” because the original, “as built” design failed to account for the scouring of lakebed under the lines. The installation of anchors elevating the lines above the lake bed constitutes a totally new or changed design of these dual lines. Worrisome currents and natural forces have pulled some of the anchors from the lakebed. Worse, the design has never been evaluated or authorized by state agencies, as required by the Great Lakes Submerged Lands Act (GLSLA) and Michigan Environmental Protection Act (MEPA). So an unauthorized, aged line will continue to operate while a longer-term tunnel will be proposed and discussed and built, if at all, in 7 to 10 years. Quite a deal for Enbridge. The company gets to run a pipeline with a failing design full-tilt in exchange for a promise to talk about the idea of a tunnel, if at all, sometime in the future. In effect, by allowing Line 5 to continue in the Straits, the agreement mostly ignores the high-risk of an oil spill causing an estimated $2 to $6 billion in damages to more than 400 miles of shoreline across upper Lake Huron and Lake Michigan.
  4. The State cannot truthfully say the agreement protects public trust resources. The State agreed to a recital that “the terms of the Second Agreement will both protect the ecological and natural resources held in public trust…” Agreements to locate or allow occupancy of pipelines or other structures on, under, or through the bottomlands of the Great Lakes require authorization under the GLSLA. Until the Michigan Department of Environmental Quality determines that the location or occupancy of a tunnel will not promote primarily a private purpose or not impair the public trust in Lake Huron and Lake Michigan, the agreement cannot even be implemented. Why not just require Enbridge to decide for itself what it wants to do, and demand the company apply for the required determinations under the rule of law of the GLSLA? Unfortunately, State officials signed an agreement that circumvents this rule of law and deprives the public of notice, participation, and their legal right that the State enforce our laws to protect the public trust and welfare of our communities and citizens. If the law would be followed, the Second Agreement would not have ignored the independent studies; instead, the agreement appears to favor the self-serving studies commissioned by Enbridge.
  5. The agreement commits the state to a new Line 5 segment under the St. Clair River without any environmental review. Paragraph B of the Agreement authorizes Enbridge to replace the segment of Line 5 under the St. Clair River with a new horizontal directional drilled (HDD) pipeline. In fact, the State agreed to allow Enbridge to make a substantial investment in this segment, tacitly confirming the continued existence of Line 5 for decades to come. How can our State officials commit to a new tunnel under the St. Clair River without considering and determining the risk sand alternatives to the entire length of Line 5, including the Straits? The law prohibits breaking up projects into little pieces to avoid full review of the risks, dangers, potential damages, and alternatives that would eliminate those risks. However, our State leaders allowed Enbridge to skirt the legal requirements that it must prove no more than minimal potential harm and no alternative to Line 5 (even though studies demonstrate that other alternatives exist and Line 5 is not necessary).
  6. The State and Enbridge mistakenly claim the agreement provides for a “replacement” of the dual pipelines with an alternative Straits Tunnel in 7 to 10 years. In fact, there is no agreement or obligation for Enbridge to do anything: In paragraph I.F, state officials and Enbridge only agreed “to promptly pursue further agreements…” for “a replacement for the Dual Pipelines” in the Straits segment of Line 5. This means that Enbridge can decide not to agree to a replacement and continue operating the existing high-risk dual lines in the Straits indefinitely. It also means the State has ignored the legal requirement that Enbridge must first prove there are no alternatives to Line 5 in the Straits and Great Lakes under the GLSLA.
    • Paragraph I.G. of the agreement proposes a “Straits Tunnel” that is a corridor for a new Line 5 under the Straits for at least another 99 years. It is only a “proposal” and Enbridge and the State only agreed to “initiate discussions… to negotiate a public-private partnership agreement with the Mackinac Bridge Authority for locating the Straits Tunnel under the Straits of Mackinac. This means, Enbridge does not have to reach an agreement for a Straits Tunnel at all, but can continue operating the existing dual lines in the Straits indefinitely. It also means that a future “public-private partnership” (PPP) agreement will be negotiated with Enbridge and the Mackinac Bridge Authority. What exactly is a PPP?
    • There is no definition of what is meant by a “public-private partnership” agreement among the State, the Authority, and Enbridge. But PPPs are a flashing red warning light. PPPs substitute and favor private corporations with obligations to generate profits for shareholders for government or other publicly owned systems that by law are obligated to deliver services to the general public at cost. PPPs often involve property transfers, long term leases, and other agreements turning over public control of public lands and facilities to private interests. PPPs can be required to indemnify the government and public from liability for damages, but these agreements are often underfunded and do not supplant the liability of the state or a public body like the Mackinac Bridge Authority.
    • The Mackinac Bridge Authority was created by the legislature in 1952 for the sole purpose of constructing the Mackinac Bridge for the people of Michigan and the public to enjoy vehicular travel between the two peninsulas. The bridge was, and is, a public project for the traveling and motoring public. The bridge authority law does not authorize construction of a new tunnel for a privately owned pipeline company or privately owned electric utility, simply because a state utility board gives them a certificate of public convenience. These companies have an obligation to generate profits and dividends for their stockholders. The Bridge Authority has an obligation to preserve the fiscal and physical integrity of the Mackinac Bridge for the general public.
  7. There is no requirement to shut down Line 5. In paragraph H.I there is a provision for the deactivation of the existing Line 5 in the Straits. However, it is not required unless Enbridge agrees to a tunnel, constructs one, and opens it for operation. Until that happens, there is no requirement for shutting down Line 5 in the Straits; the high risk of the aged, failing design will continue indefinitely into the future.
  8. Enbridge’s financial assurance is at best vague and inadequate, at worst a sham. In paragraph I.J., Enbridge is supposed to provide a combination of assets and general liability insurance policies to cover a worst-case scenario risk assessment that estimates $1.878 billion in damages. In fact, another independent damage report puts the number at $6 billion, so the state accepted assurances at the low end of the range of estimated damages. Further, the estimated coverage is not adjusted for inflation over the next 10 years, and general liability policies often contain pollution exclusions that do not cover clean-up costs, restoration costs, and associated natural resource damages.
  9. It appears the state has surrendered the water resources and pocketbook of the State and its taxpayers to Enbridge on flimsy financial assurance provisions. In paragraph I.J, the state also agreed that “Enbridge’s compliance with the requirements under this Paragraph I.J. satisfies its financial assurance obligations specified under Paragraph J of the [1953] Easement.” In short, the State has waived its leverage to enforce the financial assurance obligation in the current Easement.

Jim Olson, President and Legal Advisor

So, here we are in a world facing a “historically unprecedented” challenge to rapidly reduce greenhouse gases, and Michigan has signed a mostly non-binding agreement for the possibility of a tunnel in 2028, the same time-frame that the state and country must slash its fossil fuel consumption by 45 percent. From an eagle’s eye view, Michigan energy policy is to foster the expansion, of production and consumption of crude oil and increase in greenhouse gases at a time when the world is on the brink. From a fiscal point of view, the agreement commits the State to an investment in a tunnel and continued high risk of catastrophic damages or loss from the existing Line 5, at a time when most likely the world and national markets for fossil fuels will decrease, likely to the point that the pipe dream for a tunnel will never happen, or if it does, the State and its taxpayers will end up with an obsolete and unaffordable relic. One way or another, citizens will suffer harm, and taxpayers will suffer loss under an Agreement that favors Enbridge, not Michigan.


A Tunnel for Line 5? – That Would be a Big Mistake

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.


Common Water, Public Health, and the Common Good: Just What Does the Term “Public Trust” Mean Anyway?

byzantine-empire-public-land.-trusts

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, these 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.


The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.

First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.

Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.

Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.

All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.

All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor. 

Jim Olson, President and Founder

Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all.  It might even make for better business, jobs, economy, and quality of life that will be more lasting.


Court Charts Path Forward for Generational Commitment to Save Humanity and Earth from Rising Devastating Effects of Climate Change

byzantine-empire-public-land.-trusts

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, these 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.


Between 2010 and 2016, several groups of young people filed lawsuits in different regions of the United States, claiming the states and federal government had failed to fulfill their higher duties under their authorized powers to do something about CO2 and greenhouse gases (GHGs) that have fired warming of the planet, extreme weather events—climate change—causing devastating harm to their lives, homes, families, waters, fishing, and communities.  

Federal and state governments stonewalled their efforts, claiming that they could not be compelled to take action because the children did not have a liberty or property interest protected by the Constitution, and that they had no right or interest – standing— to bring a lawsuit.[1]  At first, the government succeeded, and then one or two courts recognized that these children’s lives and interests were threatened, and that climate change was a clear danger if not the cause of serious injuries and damage, and opened the door for litigation. But none of these efforts resulted in a clear recognition that these children, or other people threatened or harmed by climate change induced extreme weather, had a constitutional interest in “liberty” or “property,” or an interest as beneficiaries of a public trust imposed on government to protect vital interests—like drinking water, property and home, and fishing, boating, or farming.

 

A Watershed Moment

Nothing much happened, that is, until Kelsey Cascadia Rose Juliana and other children, through their legal guardian, climate scientist James Hansen, filed suit in the federal court in Portland, Oregon in early 2015.[2] The child plaintiffs charged that the federal government had violated their constitutional and public trust rights – a generational right to non-impairment of their beneficial rights in water and use of water for essential needs based on the public trust doctrine.[3] The children charged that the government and EPA had failed to take sufficient action to stem the harm and dangers of climate change, that the window for action to prevent increasing catastrophe was short, and requested an order from the court to compel the government to develop and implement a comprehensive plan to reduce CO2 and effects of climate change.

Once more, the federal government, joined by intervening industry organizations, moved the court to toss the suit because there was no legal precedent for these claims, and even if they existed, the children lacked standing or any real interest to protect, and that the students were interfering with the exercise of political discretion left to the government. In sum, the government argued the claims even if real were not the students’ business or the stuff that courts should decide.

But this time, the federal government lost. The magistrate ruled that the children had stated facts, endangerment, and harms sufficient for the early phases of the suit to proceed.[4] But government and industry, now threatened by the suit, filed motions before the federal district judge assigned to the trial of the case. In an enlightened opinion in late 2016, Judge Aikens rejected government and industry contentions, adopted the magistrate’s earlier decision, and ruled that the children plaintiffs had the right to bring the suit. He also ruled that the children had properly stated the critical dangers of climate change, the deliberate indifference on the part of the government, and properly claimed a violation of “liberty” under the constitution and the government’s high duty under the public trust doctrine to protect the children’s present and future from threats of rising oceans and impairment of the nation’s waters.[5] 

Judge Aikens considered the threat to the children was real, had already caused serious damage, and posed imminent danger to them and humanity in the near future. Exercising what he considered the traditional role of the courts, because the judiciary can’t ignore a “wholesale failure” that unchecked would result in a “collapse” of humanity. Judge Aikens ordered the parties to prepare for a trial that would determine the basis of climate science, the children’s claims, and apply the law and Constitution.

 

Hurricanes Harvey and Maria

More recently, Hurricane Maria in Puerto Rico and Hurricane Harvey, and the raging fires in California, have jolted us into the realization that global warming and extreme and increasingly chronic effects have caused and are causing devastating and chronic harms and interference with communities, property, and water. To list a few, rising sea levels wreaking havoc in coastal cities, flooding, drought and heat and fires, endangered public health, shut off of public services and water systems, landslides and other damage to property and lives.

Closer to home, in the Great Lakes region, including Michigan, we’ve seen climate change effects exacerbate and foster algal blooms that have shut down Toledo’s drinking water for 400,000 people, and more in Monroe, Michigan. We’ve seen extreme rainfall events overwhelming stormwater controls and drains, resulting in sewage overflows and serious flooding.

In the last century, some courts still held fast to the idea that the air was the atmosphere, lakes and streams were surface waters, and the water beneath our feet—groundwater—was simply “out of sight, out of mind.” In the last 30 years, hydrogeological and weather scientists have made one thing clear: We live in a water cycle, the hydrosphere, where every arc of the water cycle is connected to the others. The arc of precipitation falls to the earth; the arc of runoff flows over the land surface to drains, gullies, and into creeks, streams, rivers, and lakes. The water percolates into the earth and forms aquifers—water sources—and groundwater, another arc, which then discharges through seeps, springs to form creeks, streams, rivers, and lakes. Then, these surface waters flow to the ocean. From the arc of evaporation—from the surfaces of vegetation and water bodies, transfers water into the atmosphere. In the atmosphere, water is diverted into the arc of the air or our hydrosphere, in the form of concentrated “rivers” and “lakes” of moisture and water. 

Climate change is not just an air pollution question, it is also a water question– hydrosphere—climate change directly affects the hydrology and movement of water in every arc of the water cycle, and interferes with and impairs water, land, homes, community, and people everywhere. The effect of climate change on water and earth and life dispel any doubt that we and everything else are inextricably connected by the flow and movement of every arc of the water cycle.

Yet despite efforts to do something about climate and water and to become more resilient to live as best we can with the coming changes and impacts from climate change, the federal government continued to drag its feet.  The federal government was forced and prodded by the federal courts to treat CO2 as a “pollutant” under the Clean Air Act, but our current President has thumbed his nose at climate change rules and denounced the Paris Climate agreement. It is not unreasonable to conclude there has been a deliberate indifference on the part of governments and industries to reduce the rising dangers and imminent threat to millions of people, water and the hydrosphere.

 

Constitutional Rights and the Public Trust in Water

In 2011, For Love of Water (FLOW) and the Council of Canadians (Canadians) filed a formal report and request with the International Joint Commission (IJC) to recognize the legal interest of citizens and the duties of both countries and state governments to protect water quality, flows, levels, and its protected uses that citizens rely on for their lives, sustenance, and livelihood based on the public trust doctrine. The public trust is a well-established ancient principle that protects navigable waters and the rights of fishing, navigation, drinking water, swimming, bathing, and sustenance. Because current laws and the governments’ ability to address increasing systemic threats to the Great Lakes and all tributary waters–like algal blooms, Asian Carp, rises and drops in water levels from extreme weather, toxic chemicals, and algal blooms from nutrients and climate– FLOW and the Canadians asked the IJC to recognize the public trust doctrine, and urge governments to fulfill their duties as trustees of these waters and public trust natural resources. After supplemental reports and considerations, the IJC issued a report in 2016 that recommended the public trust as a “backstop” to fill the gaps and limitations of existing laws and efforts.

At about the same time, Michael Blumm at Northwest Law School in Portland and Mary Christina Woods at University of Oregon pioneered claims that the public trust doctrine should be applied to the atmosphere in order to force governments to drastically reduce CO2 and GHGs.[6] 

Even without extending the public trust doctrine to protect the atmosphere, FLOW argued that because the arcs of the water cycle formed a single hydrological system—hydrosphere– the traditional application of the public trust doctrine to navigable waters could be used as a basis to reduce CO2 and GHGs, because the effects on the hydrosphere had a direct effect on streams, lakes, and the oceans, and impaired if not destroyed fishing, drinking water, and other life-sustaining public trust uses.[7]  Judge Aikens followed similar reasoning in accepting the children’s public trust claim in the Juliana suit.[8]

 

Trump Administration Climate Change-Deniers Try to Torpedo the Children’s Trust Lawsuit

In a last-ditch effort to avoid a trial over the children’s climate change suit, newly appointed federal officials and their lawyers looked for a way to deep-six the Juliana lawsuit before federal district court Judge Aikens. Justice Department lawyers filed an unorthodox request with a federal court of appeals to take over control of Judge Aikens’ handling of the lawsuit, and peremptorily dismiss the case. But the Seattle federal appeals court slapped down the federal government’s bid, ruling that their attempted appeal was a “drastic remedy” on the claims brought by the children because the issues would “be better addressed through the ordinary course of litigation.”[9]

Commentators everywhere exclaimed that the appeals court ruling affirmed the federal district court that the children could proceed and signaled a landmark ruling on the science and causation of greenhouse gases and climate change. In a classic traditional role, the courts– our third branch of government—have stepped in to interpret what the law is to remedy the unjust deliberate indifference of government and climate deniers. Since Juliana and twenty-one other children filed their suit in 2015, the cities of New York and San Francisco filed suits against Chevron, ExxonMobil, ConocoPhillips and Royal Dutch Shell to pay for the damage and infrastructure needed to combat climate caused by the sale and burning of fossil fuels. Like in the lawsuits against the tobacco industry, the fossil fuel industry has known fossil fuels have heated the climate beyond acceptable levels and endangered cities, water, and the planet. And like the tobacco industry, they’ve done what they can to foster denial and obstruction to the required shift to renewable energy and rapid reduction of CO2 and greenhouse gases.

Jim Olson, President and Founder

In a way, climate change denial by government and industry is reminiscent of the Scope’s trial, fictionalized by Spencer Tracy as Darrow and Frederick March as Bryant in the 1960s movie Inherit the Wind. But the passion of Bryant was based on a genuine belief in the deeper role the Genesis story in defining the human’s place in a world created by God. The coming climate change trials are not so much a denial of science or genuine passion of belief, but a corporate defense of a fossil-fuel grip on the economy, to protect a financial empire that is causing damage and a growing danger of the collapse of humanity with a shorter and shorter period to do anything about it.

Postscript:

Congratulations to lead attorney in Juliana v U.S., Julia Olson (no relation), and Professors Michael Blum (Northwest School of Law, Lewis and Clark, Portland) and Christina Woods (University of Oregon, Eugene), and so many others. Is there any question that the effects of intense storms on the people of Puerto Rico and Houston or the raging fires in California are attributable to climate change? The Children, their lawyers, scientists, and so many organizations and people are bringing justice to those injured by breach of government affirmative duties to protect water, atmosphere, life, and the public trust.  We are grateful. The public trust in water and our hydrosphere are the heart of our mission and work. www.flowforwater.org. Join us, read up on background articles, and share. The time for mitigating climate change effects is short.


[1] E.g. Alec L. v. Jackson, 853 F Supp. 2d 11 (D.D.C. 2012).

[2] Juliana et al. v. United States, 2016 WL 183903 (Magistrate., Ore. D. Ct., Order, Jan. 14, 2016).

[3] The public trust doctrine imposes a “solemn” duty on governments, as trustees, to protect certain waters—oceans or inland lakes and streams of the state, or their tributaries, from impairment or from interference with boating, fishing, swimming, bathing, drinking, navigation and other public uses of these waters. See Illinois Central R Rd. v Illinois, 146 U.S. 387 (1892); Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich L. Rev. 471 (1970); James Olson, All Aboard: Navigating a Course for Universal Adoption of the Public Trust Doctrine; 15 Vermont J. Env. L. 135 (2014); see generally, Flow for Love of Water, a Great Lakes law and policy center dedicated to the preservation of citizens public trust in water and nature. www.flowforwater.org.

[4] Juliana v U.S., supra, 2016 WL 183903.

[5] Juliana v. U.S., 217 F Supp. 3d 1224 (2016).

[6] See Mary Christina Woods, Nature’s Trust (Cambridge Univ. Press 2013).

[7] James Olson and Elizabeth Kirkwood, FLOW Report to International Joint Commission on “Draft International Joint Commission 10-Year Review on Protection of the Waters of the Great Lakes Basin,” (June 30, 2015).

[8] Juliana, supra, 217 F Supp. at 1275.

[9] United States v U.S. Dist. Court, 2018 U.S. App. Lexis 5770 (9th Cir., Mar. 7,  2018); “We’ll See You in Court: Kids Climate Moves Forward After Judge Denies Trump,” www.ecowatch.com/kids-climate-lasuit-trial-2544414443.html. Mar. 11, 2018.


NY Times features Public Trust Doctrine

A recent article on the New York Times Opinion Editorial Page  features the public trust doctrine as basis for citizens, including the children atmospheric trust cases, to bring court actions to order governments to take affirmative action to drastically reduce greenhouse gases and minimize climate change.  All water, air, and wildlife are legally viewed as public commons.  Water and other commons that are special, rare, unique or endangered are protected specifically by the public trust doctrine.  Certainly, the atmosphere, which is actually a hydrosphere connected to public trust water, at this time in history is rare, endangered, and tied directly to devastating harm to this and future generations, including our navigable public trust waters and their tributaries.  These court cases and similar efforts are growing evidence of a paradigm shift in this country to protecting our commons; they are public, necessary for health and life, and do not belong to any one private interest or sector.  The public trust duties require affirmative action in perpetuity to protect citizens rights to water an air under public trust principles.  Our federal and state governments have inherent and significant authority to fulfill these duties, and must do so now, without our children having to be surrogates for government and the rest of us.  There is no excuse to wait, by government or the fossil fuel industry; failure to take action and waiting and stalling, or patterns of interference in protecting water and air from climate change will impose liability on them.

Some Thoughts for the New Year: Common Home and Common Principles – Living and Working for the Common Good

 

Jim Olson FLOW Founder

 

 

By Jim Olson

President, FLOW For Love of Water, Traverse City

Attorney, Olson, Bzdok & Howard, P.C., Traverse City

 

 

 

 

When I look back over the past year, I can’t help but feel hope in the common goodness of people and communities.

I say this not without heart felt and serious concern about events in the world that point in the opposite direction – despair: increasing violence from guns, war, and sweeping droughts and floods, causing death and dislocation of millions of people and children, global warming and the push-back from unprecedented storms and extreme weather that compound drought, floods, landslides, which in turn destabilize countries like Syria fomenting conflict and conditions for ISIS. To paraphrase Circle of Blue senior journalist Keith Schneider, “The earth is angry and she’s fighting back.”

Closer to home, Detroit water shut-offs continue despite the devastating impact on the poor who can’t afford to pay a normal water bill, let alone the $100 a month or more claimed by the Detroit Water Board. State leaders finally stop denying the Flint water-crisis more than a year after residents demanded help, that its children and residents were exposed to high levels of lead from the city’s public water system. The problem is more endemic than Detroit or Flint, since both crises grew out of the unbridled power of Governor Snyder’s emergency manager law to usurp the power of city assets and revenues to pay debts regardless of the impacts to citizens. Flint’s emergency manager thought only of economic expediency in turning off water supplied from Detroit, and tapping into the filthy, polluted Flint River. Then there is the continual threat from the flow of oil in the aging, nearly 63-year old Line 5 pipeline under the Straits; the harm from a release or leak would be so catastrophic, the risk is unacceptable to everyone; yet the flow of oil continues without immediate temporary measures while state officials continue to study it as if it was an “issue,” and not the clear and imminent endangerment of the Great Lakes and the Straits of Mackinac – the fact is there is enough capacity within the pipeline system in the Great Lakes without Line 5 endangering the Straits.

So why the hope? Other events have happened this past year that point to a new way of understanding and, perhaps, solving many of the threats that we face in the world and our communities.

First, Pope Francis issued his encyclical on climate change and the environment, connecting the reality of our excessive consumptive materialism, global inequality, poverty, ecological and community devastation, and violence that follows. He carefully documented that our way of seeing and doing, our post-modern god of the law of free markets and legally justified greed, our fragmented attempts at dishing out money to help the poor are not working. He says this because we are living a material, market place illusion, and not in harmony with the reality that the earth is our “common home,” and that if we do not share its gifts and respect its inherent natural limits, earth’s water, weather, soil, and the biological diversity on which all life depends will continue to worsen to even greater extremes. He points to a new paradigm, a framework in which we work and live with the understanding that a body of water, whether ocean, Grand Traverse Bay, or Lake Chad, are a commons, part of the gift of earth as commons to all. If we do this, not only with water, but the ridge lines and forests, the beauty and land that are home to our relationships, our cities, the neighborhoods within our towns, the soils beneath our feet, the air we breathe, then we will begin to reshape our life around truth and the given limits of nature, and this will guide our living, our way of life, or economy, full and rich with newly directed creative and sustainable opportunities and entrepreneur ship.

Second, amidst a world of conflicts, from Syria to the Ukraine, from our own cities, to Nigeria, Sudan, and Afghanistan, and in the aftermath of the mass murders from extreme terrorists in Parrs, the nations of the world cooperated: leaders of large and small, developed and developing, or undeveloped countries, recognized the responsibility to each other, agreed to something, the world temperature will not rise more 2 degrees, and maybe less. While it is not law yet, if taken implemented, it will help stave off global calamity greater than two world wars last century, by reducing the irreparable damage we face from climate change and global warming. There is hope in the agreement that we stop denying and see the mounting harm and set a goal that through hard-work and common sacrifice offers a way out of an unthinkable alternative for people everywhere.

Third, we witnessed the bridging of differences by our Supreme Court in precedent setting cases that demand human dignity for marriage between two people, human rights to housing and water for the poor without access, as wells as the genuine search for a common goal to address wasteful and harmful water rights in the middle of the historical California droughts.

Fourth, our political debate heating up even before the 2016 presidential election has pointed to something more than the old, increasingly polarized beliefs in market economy, through money at wars and problems, rather than considering the root of the problem might be the way we are looking at them. Regardless of my own or others’ political persuasion, there is a fresh voice in Bernie Sanders, laying out the case for a community based on sharing of wealth, taking care of neighbors, and our neighborhood, what Pope Francis calls our “common home,” and at the same time helping with services to the poor, respecting and honoring diversity, and encouraging new business innovation. We have been trapped in this country in a red and blue, right and left, straight-jacket of false ideology, rather than identifying those things that are essential to every one of us and providing for them as principle of our country—the common good.

Fifth, then Michael Moore comes out with his latest film Where to Invade Next? Good God, here we have the message that we here in the USA had the idea, come up with the ideas, of common good, yet go in the opposite direction of individualized competition based on a law of the jungle called free markets. Everything is about profit and money and bottom line. The world is not a corporation, it is a commons in which corporations organizations are simply a means, not an end.

Do we really have a choice? Our common home and communities are simultaneously local and global. It’s not just act locally, think globally, or act globally, think locally. It’s all of this and more. If we don’t act, for example, on climate change, or understand that climate change is not just an energy issue but about water and food, if we don’t move toward a renewable economy within a few years, small island countries will literally disappear, rainforests and biodiversity will disappear, coastal cities and other areas will increasingly flood and fail from even more extreme storm events or the day-to-day failure to change, adapt and embrace resilient cooperation—the common good. All one has to do is read through “4 Degrees Turn Down the Heat: Climate Extremes, Regional Impacts, and the Case for Resilience,” a report published by renown scientists and even sponsored by the more conservative World Bank. The picture is not pretty, and it would it is ignorant, even immoral, at this time in history not to act, even out of self-interest, for this common good.

So I end this year and start the next with hope. At FLOW, the Great Lakes and Water Policy Center, here in Traverse City, and other organizations throughout the region, we have chosen as a mission and goal to protect the waters of the Great Lakes basin as a commons with principles, known as the public trust doctrine, that require government as trustee and people as beneficiaries, to work together to respect and protect water and community that depend on it from impairment. Private control of public waters and other public commons has always been prohibited; this is because some things essential to all of us are common to all of us. If we don’t protect the commons, we undermine the air, water, community and neighborhoods where we live. To work and live toward the common good is to work for the commons and at the same time work for yourself, family and friends. To not work for the common good, is to continue the long, slow, or perhaps not so slow, disintegration that leads to destruction of the earth, water, air, community, people, and leads to a world violent and unsafe.

It is hopeful and reassuring to see positive events pointing toward this new way of seeing, understanding and doing – living and working for the protection and sustainability of our common home and the common good. They are one and the same. Here’s to another hopeful New Year.

 

 

 

Holiday Thoughts on the Paris Climate Change Agreement: A Christmas Gift of Hope and Reality

By Jim Olson, President

FLOW (For Love of Water)

 

We can be thankful that nations of the world have opened the door to the foyer to address climate change. Most encouraging is the senses of cooperation to protect this home we call earth.

The other end of the promise and hope of the Paris accord is the reality that the thick tail of climate change has been rampaging and will continue to do so, erasing soil, melting glaciers, flooding and erasing people, landscapes and communities from the face of the earth.

Keith Schneider, NY Times journalist and senior editor at Circle of Blue, once again, in his true to form visionary hard-core journalism, lays bare this reality in his article in the New York Times. The whipsawing swing of climate has, is, and will strike hard. In the midst of humanity’s hope, so the message is clear: We must face reality, start the change, start finding and living the new renewable life, move toward inevitable near fossil-fuel free economies and lives, and we must do so as fast as possible to shift to the inevitable renewable energy economy.

Many places and people need this, we owe it to them as co-citizens.  We owe it to ourselves and our children, and the unborn children to come.  Earth is our common home — as Pope Francis puts it in his encyclical on climate and sustainable environment and communities. And, in the middle of this change, there is another shift, one that is based in ancient and modern principles — the commons of this world — air, water, soil, species, life itself, and the liberty of humans, depend on understanding and respecting this commons.  To do this, we must view and manage these as held in trust, a public trust, one that brings us to an ethical and legally implemented framework that manages and passes on these commons by maintaining or restoring a sustainable integrity of air, water, soil, species, including we sapiens, for centuries to come.

If we can shift to seeing our individual goals, dreams, needs as dependent on and fostered by the commons, we can solve these threats with incredible resilience, creativity, cooperation and entrepreneurship. But we must start this shift in paradigm to a comprehensive, unifying principle of commons and public trust now – in 2016– to guide our decisions, force the right decisions that if not made trespass on and impair the commons in violation of this trust, so that we truly solve these threats at the level of the problem. If we do this, the gift this Christmas may be the protection of liberty and dignity and survival that depend on this, a gift of reality that encourages us to change along the lines of both the hope and reality of climate change and our future.

Dark Snow is “Not Cool” – Peter Sinclair on Climate Change and Showstoppers

Peter Sinclair is tall and brawny, and while the climate change communications expert looks like he could scale a mountain or scramble a glacier (and soon he will), he doesn’t look like a baseball player on steroids. What looks like a baseball player on steroids, he says, is climate change. While a baseball player on steroids may have an overall improved performance, like more home runs, it’s not possible to connect the steroids to any single home run.   Climate change and global warming is the same way, says Sinclair, climate change causes cumulative losses, sometimes devastating to earth and humanity.  The overall trend is that climate change contributes to weather extremes, and it is happening at a more frequent pace. But just like the ball player, it’s not practical to attribute climate change to any one specific weather event or another. Today’s cool rains, for instance, cannot disprove global warming. All you have to do is ask an insurance company’s actuary or risk analysis department. The extreme events and frequencies are rising fast.

Sinclair, a native of Midland with a family background in environment and energy activism, visited Traverse City Monday to give a presentation on global climate change issues. At lunch with Sinclair and water attorney-cum-nonprofit-policy-advisor Jim Olson, the conversation kept returning to the notion that the media and grassroots communications need to step up and drive home the reality that climate change is here, global warming is now and it is serious.

Our climate baseball player has been dosing for some time, and even if we successfully cut carbon emissions, we’ll still be dealing with the repercussions of the past, and the consequences are dire. Like addiction, the consequences of actions can take decades to subside. The actions of our past have created climate conditions contributing to significant issues, like warming average lake temperatures, making our Great Lakes more invasive species-friendly, and more apt to bloom with toxic algae. We might not see the greenhouse gasses of yesteryear, or of today, but the rippling impacts manifest in our everyday struggles. Sinclair and Olson are both acutely aware of is the invisibility of their respective fields, and the importance of bringing issues like climate change and the hydrological cycle out of hiding and into focus. FLOW’s work connects the dots between serious systemic threats like climate change to the impacts on water and the hydrologic cycle and our daily lives, and helps us understand the commons through which we must holistically address these threats.

Sinclair’s video series aim to make those kinds of connections, and his “Climate Change Crock of the Week” YouTube segments became so popular with politicians, journalists, and scientists, that now Sinclair contracts with Yale Climate Connections on a new series, “This is Not Cool.” Sinclair’s foray into the climate change video world was kick-started into gear after he was among the first to train with Al Gore in Nashville about seven years ago, an effort that has expanded globally into what is now the Climate Reality Leader Corps. The difference is Sinclair’s knack for irony, smart editing, and droll scripts that debunk the climate denial myths and translating without trivializing the science and scientists that prove climate change is indisputable.

Presently Sinclair is working with the “Dark Snow” project, a mission to Greenland led by expert climate scientists and a pro media and communications team. For two weeks, the team will weather intense sun, extreme cold, and a constant, slippery battle to get their data. Describing his experience from last year’s Greenland excursion, Sinclair says “it’s like climbing the Sleeping Bear Dunes for four hours before you can even get your first measurement… and it’s ice.”

Despite the challenges of battling the elements, they will help show the climate scientists in action and are trying to raise funds to set up a live stream from their encampment. All the ice core and surface water samples will be analyzed to measure the on-the-ground effects of climate change on Greenland’s ice sheet. The team is specifically investigating how and why dark snow is accelerating the ice melt there. Why? With causes of climate change running amok under a cloak of invisibility, it’s important to be able to identify tangible “showstopper” issues, says Sinclair. By finding out the cause of dark snow, scientists can identify a “limiting factor” that can be prevented or mitigated in a meaningful way. Rather than trying to stop the whole juggernaut of climate change, finding a lynchpin to stop the wheels of climate change from turning is just as important for avoiding critical catastrophes, like hyper-accelerated ice melt in Greenland.

At FLOW, Olson is working on gaining traction for identifying the “limiting factor” of phosphorus loading that is feeding the growing harmful algal bloom problem in the Great Lakes. Of course, climate change effects on the Lakes accelerate and increase the magnitude of the algal bloom problem. Which is why solutions for preventing further global warming is critical, too. Identifying the “showstoppers” is a critical mission for the Dark Snow project and for FLOW’s work in the Great Lakes, but these projects aren’t happening in a vacuum. Both Sinclair and Olson are studying and working on the “nexus” intersection of water, energy, agriculture, and climate change issues. Of these, issues like carbon tax regimes and price parity of renewable energy are increasingly relevant to Great Lakes water levels and Greenland’s ice sheet albedo.

As Sinclair points out, “we still have a choice” in our future, and we should choose climate change solutions like greening our energy supply and optimizing energy demand efficiency. Making small choices on a collective scale isn’t as difficult as moving – or in Sinclair’s case, climbing – mountains, and with leaders like Sinclair and Olson, solving essential, trim tab issues like dark snow and algal blooms can deliver a real home run for our shared environment and our future.

Video: Jim Olson, Maude Barlow on Public Trust and the Commons at the Rochester, NY Sierra Club 15th Annual Forum

Click here to view the full video

FLOW President and Chair Jim Olson joins international water advocate Maude Barlow at the Rochester, NY Sierra Club’s 15th Annual Environmental Forum on March 25, 2013. To watch the video in full, click here.

The Water-Energy Nexus: FLOW at the MI Governor’s Energy Policy Listening Session

As part of Earth Day today, I had the opportunity to submit FLOW’s memorandum to the Michigan Public Service Commission at the Governor’s “listening session” on future energy policy in Michigan. At FLOW we believe that by looking at the entire hydrological cycle as a basis for addressing systemic threats like climate change–the single largest human induced diversion from the Great Lakes–water and energy policy and actions are inseparable. More importantly, if energy policy is elevated to an obligation to protect the integrity of water, something the commons and public trust in water may well require, then our energy policy can better promote jobs and economic stability and growth and protect water and the environment. FLOW Executive Director Liz Kirkwood also spoke at the forum to address the need to connect water to climate change, energy, and wasteful or inefficient and inequitable water consumption practices related to energy and food production, and other consumptive uses. You can read FLOW’s memorandum on the Energy and Water Nexus, along with the rest of our reports, on our policy center page. The text of our comments are below:

Click here to read FLOW President Jim Olson’s comments as a PDF
 
Click here to read FLOW Executive Director Liz Kirkwood’s comments as a PDF
 

Statement by James M. Olson, Chair, FLOW
A Water and Energy “Nexus” Policy For Michigan

The “energy listening” sessions ordered by Governor Snyder to help Michigan fashion an energy policy are welcomed. However, at a time of a climate change crisis fired by coal and other greenhouse gases with severe and worsening impacts and costs, including increasing extreme low water levels, there is a disconnect between energy and Michigan’s most valuable common treasure – water and the great lakes. No energy policy in Michigan should omit the protection of the integrity of our water – both quality and quantity- as one of if not its central core principles.

There is a rapidly increasing demand for water world wide and strong probability that global demand will outstrip supply in just 30 years. If anything drives the point home for a 21st century policy that centers on a “nexus” between water and energy, it is the staggering cost to life, property and communities from storms like those experienced in the northeastern United States this past year. Add to this the lowest water reported water levels in the Great Lakes, and devastating future climate change entails for all of us and our children in this century, and it becomes quite evident that water and energy are inseparable. It is imperative that water is declared the core of our energy policy. If we honor and respect the integrity of water and our Great Lakes, we will find and follow a sound energy policy.

Because of the need to address water and energy together (as a “nexus),” Michigan must move forward with a multi-disciplined framework that requires application of “integrated resource planning” principles for evaluating energy policy and options. The same should be true for water policy. This would require a goal and planning effort that seeks the least costly energy services and goods with a full evaluation of all costs to water, the ecosystem, and our communities. Without “full cost” and integrated resource planning, Michigan’s energy policy and use will lead the state into an impoverishing downward spiral — economically, environmentally, and culturally. “Pure Michigan” and a sound sustainable economy and jobs mean pure air and pure water both in quality and quantity.

Therefore, it is my opinion, and I urge the governor, his advisors and staff, and the legislature to consider and adopt an energy policy that conforms to the integrity of water, the gravity of climate change, and a dynamic open mindedness that applies full cost evaluation and integrated resource policy. If we fail to do this, Michigan will fall into decline while other parts of North America and the world begin to prosper.

Three points:

  1. Michigan sits in the middle of the most valuable water/ecosystem in the world. It is held in public trust so that it is protected from impairment and loss. The Great Lakes Compact and Water Quality Agreement of 2012 underscore this principle and enact a policy that these waters are held in trust and should not be diverted or loss by consumptive uses, and this requires a response to keep greenhouse gases in check.
  2. In one week, thermal electric power plants use (a net loss to great lakes) as much water as the Chicago Diversion. Energy costs are rising, water levels are falling, water is more essential than coal-fired or other fossil fueled power, including the extraction of equally water intensive fuels like fracturing deep shale for natural gas – deep shale fracturing will displace or remove approximately 21 million gallons in 21 days for just one gas well. Multiply this times the 1,000 wells we will see if this is not carefully considered and regulated, and it will result in a permanent loss of 21 billion gallons of water from fragile headwater areas.
  3. The only sound and secure goal for Michigan is to move quickly toward a renewable and efficient energy world. This will diversify, increase, and lower cost of energy supplies, reduce costly infrastructure, reduce toxic air and water impacts, and temper the effects of climate change, including our plummeting water levels. Equally important, it will set Michigan on a course to lead the nation and help the next generation create positive profitable investments, cheaper more appropriate power, new industries and jobs – batteries, solar, wind, and conservation. Michigan must enact a “greenhouse trust fund” for any so-called “bridge fuels” like natural gas so that the justification of such a water-intensive environmentally risky method of extraction will be assured by a conversion to a renewable energy economy.

Michigan and Michiganders are nothing without water. Any approach to energy without integrity of water as its core principle and without an immediate shift to renewable energy and efficiency will put Michigan in an economic and environmentally disastrous downward spiral. We owe to ourselves and children and grand children to put water and Community first. It is a matter of water and public trust. It is a matter of survival.
 
 

FLOW Executive Director Liz Kirkwood’s Comments on the Water-Energy Nexus

My name is Liz Kirkwood and I’m the Executive Director of FLOW (“For Love Of Water”), which is a water policy and educational institute dedicated to understanding the threats and solutions to water in the Great Lakes by focusing on the nexus between water, energy, food, and climate change.

I want to thank Michigan Public Service Commission Chairman John D. Quackenbush and Michigan Energy Office Director Steve Bakkal for the opportunity to speech and address overall question 1: What information do energy policy makers need to consider in order to make good energy decisions?

Michigan faces a watershed moment and opportunity to chart a new cleaner energy course that is good for jobs, good for the environment, good for energy affordability, and good for the water.

To chart this new course, we first must recognize that our energy choices profoundly affect our water and cause serious climate change impacts.

Water and energy are inextricably linked. Water is used and lost in energy-resource extraction, refining and processing, transportation, and electric-power generation. And yet, because water is such a cheap commodity, it is rarely calculated and balanced in our energy decisions. Let’s change this so that the water-energy nexus become an integral part of charting Michigan’s energy future plans.

By 2035, the amount of water consumed for current energy production is projected to double. During this same time, there will be increasing water scarcity from pollution, waste, drought and human-induced climate change and impacts.

Given the clear interrelationship between energy, food, and water, we can no longer “silo” these sectors; rather we must improve decision-making with greater integration and collaboration between water resource management and energy production.

This calls for a new vision that recognizes the nexus between water, energy, food, and climate change. To make this shift, we must view water in a different light where water becomes the starting point for everything we do. Without water the health of our people, economy and ecosystem are diminished.

The recent U.S. natural gas industry shale boom has reignited attention on the water-energy-climate change nexus. The big issue with hydraulic fracking is the water, both in terms of sheer quantity (e.g., 300 million gallons to frack 13 wells in Kalkaska County) and safe disposal of chemical-laden and often toxic waste water that will never return to our hydrologic cycle. Before Michigan embraces natural gas as a “bridge” fuel, we must conduct a generic analysis of cumulative impacts on water, environment, and health that properly weighs the unprecedented risks that fracking poses to our precious water resources.

Additionally, Michigan’s coal-fired power plants are the state’s largest single source of heat-trapping carbon dioxide emissions, which are detrimentally contributing to climate change by increasing lake evaporation and causing our extreme low water levels in Lake Michigan-Huron.

In fact, we hit record low water levels in January of this year – 26 inches below average – according to data collected by the U.S. Army Corps of Engineers since 1918. The water levels issue is at the heart of the Great Lakes’ and Michigan’s economy, energy and water needs, social fabric, quality of life, and environment. In March of this year, our Governor signed legislation providing $21 million in taxpayer emergency funds to dredge state harbors that are in danger of becoming impassable because of low water levels.

We cannot sit idle anymore; rather we must adapt our current fossil-fuel economy to one with low-carbon and low-water footprint. Water in effect must become the center of everything we do, such that shifting to renewables becomes the obvious energy choice and addresses the root causes of receding water levels so that we do not jeopardize our current and future way of life.

Michigan is already witnessing renewable energy sources like wind becoming more cost effective and affordable to our businesses and citizens than polluting traditional sources like coal and oil. Wind is at 4.5 cents/KWH as opposed to traditional blended energy sources at 7.6 cents/KWH. The benefits of renewable energy are clear: affordable, clean, stable rates, Michigan job generator, minimal water use, and protective of human health and the environment.

In addition, Michigan should promote energy efficiency and energy conservation in all sectors because it is the cheapest, cleanest, and most quickly deployed source of energy.

To chart this new course, Michigan must embrace its innovative manufacturing traditions and promote renewable energy sources to reduce pressure on water resources and limit adverse climate change impacts. We think Michigan can and should become a leader in renewable energy, and at a minimum compete with the neighboring states that currently generate 20%+ of renewable power with excellent reliability.

We urge the State of Michigan to think wisely about its future energy choices, pay for water consumed, and ensure that the long-term energy decisions are good for our water too. Once we chart this path, then we can proudly say we are living up to our motto: “Pure Michigan.”