Tag: Liz Kirkwood

Growing the Plastics Conversation towards Meaningful Change

A growing movement is afoot here in the Great Lakes – a broadening recognition and fierce determination to tackle the ubiquity of single-use plastics in our waters. Just in our small neck of the woods in northern Michigan, a number of nonprofit groups, concerned citizens, and conservation districts are seizing the moment and starting conversations through film, public education and strong campaigns to change the way we accept single-use plastics in our everyday lives.

In just the last three weeks, Green Elk Rapids hosted A Plastic Ocean at the Elk Rapids Cinema; the Benzie Conservation District hosted the Smog of the Sea at the Garden Theater in Frankfort; and the local chapter of The Last Plastic Straw hosted a free film screening of Straws at Michael Moore’s State Theatre, followed by a Skype conversation with filmmaker Linda Booker. Groups like Inland Seas that embraced the issue early are no doubt pleased to see their educational efforts on microplastics gain traction among students, citizens, and leaders.

Film organizers from The Last Plastic Straw – Linda Frank, Kathy Daniels, Claudia DeMarco, and Kristine Drake – rightly predicted that plastic straws are an easy way to introduce a community conversation about the impact of single-use plastics on human health, animals, and the environment. Did you know that Americans throw away over 500 million plastic straws every day? It’s staggering facts like this, coupled with visual scenes of plastics pollution, that make for a great film and engage viewers to take meaningful action. The  goal for every committed citizen and organization and every filmmaker is to harness this engagement around plastic straws and shift the way individuals and businesses think about plastic pollution and our society’s disposable culture at a macro scale. 

At FLOW, we too are committed to this global public policy initiative to prioritize protecting the human and ecological health of the Great Lakes ecosystem and combatting climate change. We know that this transition will be hard, but Rachel Carson reminds us why we must act now:

Liz Kirkwood, Executive Director

“We stand now where two roads diverge. But unlike the roads in Robert Frost’s familiar poem, they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road-the one ‘less traveled by’-offers our last, our only chance to reach a destination that assures the preservation of the earth.”  – Silent Spring, 1962.

Join FLOW’s Get Off the Bottle campaign. The response has been incredible. Students, citizens, and businesses are spreading the word with our informative blogs, stickers, yard signs, and pledge to get off bottled water and plastics.


Anatomy of A Spill in the Great Lakes

Five years ago this spring, when I first learned about Line 5, I could only imagine what a catastrophic oil spill would look like here in the heart of the Great Lakes.  Two weeks ago, we dodged a bullet as we watched a hazardous liquid spill from two neighboring transmission cables unfold. What we witnessed was an anatomy of a spill — and how truly devastating an oil spill would be.    

Here’s what we know from the April 1st spill in the Straits.  

A release of at least 600 gallons of toxic coolant and insulating fluid from electric cables owned by American Transmission Company (ATC) occurred sometime Sunday afternoon in the Straits of Mackinac.  The dielectric fluid is a mineral oil that contains a benzene compound. ATC, however, did not report the release to the Coast Guard for 24 hours.  By Monday, ATC officials were blaming “extraordinary circumstances” like ice in the water and near the shore that hindered the emergency response.  

No cause was initially identified until days later.  The cause? Vessel anchor strike. News media coverage revealed the chaotic nature of responding to this hazardous liquid spill with Coast Guard helicopters looking for oil sheens and a multi-agency unified command assembling from federal, state, tribal, and local agencies and units.  Reports attempted to allay public fears, indicating that the product was so diluted that it would not pose a threat to drinking water supply intakes. The greatest threat posed was to wildlife and shore birds swimming in possible oil floating on the water’s surface.

On April 3, Enbridge – owner and operator of Line 5 – temporarily shut down the flow of oil in the pipelines to evaluate the leak detection systems.  Ten days after the ATC accident, on April 10, Enbridge notified state and federal officials that their pipelines had suffered three dents, likely due to the same vessel activity that may have caused the damage to the ATC lines.

Hold on.  Vessel anchor strike hitting Line 5?  This was the number one threat that Dynamic Risk identified in their November 2017 alternative report to the Governor-created Michigan Pipeline Safety Advisory Board.  Ironically, the original Bechtel engineers believed that a vessel anchor strike was only “one chance in a million.”

Well, two weeks ago that one chance in a million struck.  

And finally, a growing chorus of federal and state leaders from both sides of the aisle are demanding that Line 5 be shut down until a full visual inspection has taken place.  Tribal leaders like Aaron Payment from the Sault Tribe call for more comprehensive investigation and analysis: “These old pipes need to be shut off, at least until proper investigations and the full analyses are finished.” . . .  “Governor Snyder should not be using this accident as an excuse to fast-track a tunnel.”

Liz Kirkwood, Executive Director

So what can we learn from this?  First, we don’t need to imagine anymore.  We know that it might take up to 24 hours before the spill is even reported.   We know exactly how difficult it would be to deploy emergency responders to contain oil in the open waters.  We know how extreme the conditions are in the Straits, even in spring. We know about the challenges of ice. We know that we can never be 100% prepared in such a dynamic, chaotic, and extreme environment as the open waters of the Great Lakes.  Second, and most important, we can’t take a second chance because of the magnitude of harm and risk that Enbridge is asking citizens of Michigan to shoulder.

Let’s do the right thing. Michigan leaders – it’s time to be proactive and shut down this 65-year-old oil pipeline before it’s really too late.    


Racing to the Top: A Reason for Hope by Liz Kirkwood

There’s no question that this is a tough time to be an environmental lawyer.  Just Google “roll back of environmental regulations” and you’ll get hits like “67 Environmental Rules on the Way Out Under Trump” or “A Running List of How Trump is Changing the Environment.”  And that’s just a tiny snapshot of what’s happening at the federal level.  Here in Michigan, in the heart of the Great Lakes, we also are witnessing a wholesale attack on groundwater laws for big ag, rulemaking authority for environmental agencies, and even the Great Lakes Compact.  

But I’m also a historian of sorts where I voraciously hunt for glimmers of hope.  I look for those stories that demonstrate human innovation, collaboration, and desire to take risks, do good for the planet, and imagine the impossible.

Lo and behold, I found one of these gems the other day.  It was a news story about five water utilities in the Great Lakes competing with one another to reduce their energy consumption and air emissions. These select water utilities are using technology to track and then shift to lower polluting power sources that reduce lead, mercury, carbon-dioxide, sulfur dioxide, and nitrous oxide emissions from the atmosphere.  Using new technology called Locational Emissions Estimation Methodology (LEEM) designed at Wayne State University, these water utilities opt to pump water when the lower polluting electric power sources are online.  As a result, a Wisconsin utility has reduced its mercury emissions by 25 percent by pumping water at off-peak hours and alternative times in a day.      

Liz Kirkwood, Executive Director

Imagine if we saw this kind of competition across all sectors in health, energy, agriculture, industry, food, and water.  Imagine that we all saw ourselves in a race to the top, bringing everyone up together.  Let’s keep thinking big, and in the meantime, let’s give three cheers to these communities that are leading the way: Bayfield; Detroit; Ann Arbor; North Syracuse, New York; Highland Park, Illinois.


Once More: Line 5 and the Public Trust

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, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.


Perhaps if they hear it often enough, they’ll act.

Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.

It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago.  Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust.  The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.

Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010. 

FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.

Here are a few of Liz’s comments from Monday: 

“We are approaching the hour of decision on the fate of Line 5.  This process has been an epic example of how not to protect a world-class resource.  Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.

“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed.  This new design was not contemplated in 1953.  Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.

“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best.  The state owes Enbridge nothing.  Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”


A Clear Plan to Decommission Line 5

Advocates of shutting down dangerous Line 5 at the Straits of Mackinac presented a detailed plan for its decommissioning yesterday.  The plan gives the state officials who are accountable, Attorney General Bill Schuette and Governor Rick Snyder, a detailed, realistic plan for protecting the Great Lakes from a catastrophic oil spill while assuring energy to meet Michigan’s needs.
 
Enbridge has been using publicly-owned lakebed at the Straits as a conduit for its shipments of oil and gas underneath the Straits under a 65-year-old easement granted by the state on the condition that the company operates prudently.  But repeated disclosures of shoddy maintenance, structural flaws in the pipelines and concealment of critical information from state officials demonstrated Enbridge is not acting prudently.
 
FLOW Executive Director Liz Kirkwood said, “It’s time to move forward with legal action to compel strict enforcement of the current easement and to set a timetable for ending the easement.” 

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The Nutcracker & The Public Trust


My children and I recently celebrated the season by watching a wonderful Nutcracker ballet production at the Interlochen Arts Academy. Reading the back of the playbill, I was amazed to learn that this extraordinary music and ballet – now an American classic – was conceived one hundred and twenty-five years ago in the winter of 1892. The premiere of the Nutcracker Ballet performed in St. Petersburg, Russia, however, was not an instant success.

In fact, it was not until the late 1960s that the Nutcracker was embraced as a beloved American classic performed by countless ballet companies, primarily during the Christmas season. The melodies of Tchaikovsky resonated so deeply in me, drawing me into Clara’s enchanted world. And I remember thinking how few things are as powerful and evocative as music.

So what does Tchaikovsky’s ballet have to do with public trust law in America? Good question. It may seem like an odd connection but it’s not, because 125 years ago marks the seminal Supreme Court decision – Illinois Central Railroad v. Illinois – that established U.S. states as trustees over public trust waters and bottomlands for the benefit of citizens in perpetuity. One hundred and twenty-five years ago, the public trust doctrine became the law of the land. After nearly thirty years of controversy, the Supreme Court affirmatively nullified the deed the Illinois legislature had granted the Illinois Central Railroad. As a result, the public gained back a quarter-square mile of the downtown waterfront of Chicago and understood that they could hold their state governments accountable for protecting the paramount interests of the public waters.

The importance of this legal decision cannot be underscored. If the Supreme Court had not ruled in favor of the public and asserted the inalienable nature of public trust waters and bottomlands, Chicago’s downtown waterfront would have been privately owned, and there would be no Millennium Park.

Liz Kirkwood, Executive Director

One hundred and twenty-five years is a long time. And yet, I reflect on how timeless and powerful Tchaikovsky’s music and ballet remains. What if the public’s understanding of public trust law had been similarly embraced? What if states like Michigan upheld their public trust duties and enforced easements in public trust waters to prevent a private oil company from threatening our public waters? What if more citizens knew that their state leaders – governors, attorney generals, and agencies – were required by law to protect the paramount interests of navigable waters and tributaries? And what if more citizens demanded public trust protections of our greatest natural resource – water? Just imagine how powerful a stewardship tool we would have today. Let’s remember the gift the Supreme Court gave us 125 years ago and bring it back to life for the sake of the Lakes and our children’s future.


Public Comment to Michigan Pipeline Safety Advisory Board

Line 5 Pipeline

Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.

Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.

Here are only a few of our major concerns with this final report:

  • 1: Assumes that the state must guarantee that Enbridge is able to deliver 23
    million gallons of oil daily through Line 5. The legal agreement to occupy our
    public waters is not a covenant to keep oil pipelines operating indefinitely and at full
    capacity. This bias results in the tunnel option appearing as a favored report
    alternative.
  • 2: Dismisses the most credible alternative of existing pipeline infrastructure. As
    documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
    Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
    Michigan’s energy needs. The report acknowledges that excess pipeline capacity
    exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
    supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
  • 3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
    will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
    traverses 245 other water crossings, including ones that are tributaries of Lakes
    Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
    economic and ecological disruption to the region and contravenes Michigan’s policy
    ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
    why would Michigan want a Canadian company’s tunnel located under the planet’s
    largest fresh system water systems and potentially usher in heavy tar sands transport
    back to Canada? This makes no sense.
  • 4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.

So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.

The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.

The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.

The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.

Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.

Thank you.
Liz Kirkwood, Executive Director


Liz Kirkwood’s Comment to the PSAB

  • Over two years ago, the Governor of Michigan created this Advisory Board by Executive Order to “Review and make recommendations for statutory, regulatory, and contractual implementation of the Michigan Petroleum Pipeline Task Force Report.”  This meant the board was required to oversee an independent and comprehensive analysis of risks and alternatives. 

 

  • Instead we Michiganders have (1) no risk report, (2) a flawed alternative report that still ignores the most credible alternative – using existing and expanded pipeline infrastructure around the Great Lakes, and (3) the Governor’s Thanksgiving deal with Enbridge that locks in a tunnel alternative under 20 percent of the planet’s fresh surface water. 

 

  • What our leaders have now is Tunnel Vision. 

 

  • Tens of thousands of citizens of this state have taken the time to study these matters and express their views to you.  Members of this board have spent countless hours on your task.  All of that for naught because of a closed-door agreement between Enbridge and the governor.

 

  • The deal allows Enbridge’s decaying Line 5 oil pipelines to continue to occupy the publicly owned lakebed at the Straits of Mackinac indefinitely, despite the company’s record of deception, poor stewardship, and bungled emergency response.  It’s a reward for failure.

 

  • We know a fair alternative analysis can be done.  In fact, in December 2015, FLOW offered a thorough analysis for the decommissioning of Line 5 that established an alternative that reasonably met the basic purpose of transporting crude oil to the various refineries within and beyond the Great Lakes region.  Why hasn’t the state done the same?

 

  • The Governor’s deal has mapped a blueprint that narrows the alternatives to some form of tunnel replacement in the Straits, the Great Lakes, and St. Clair River.  Moreover, the deal will bind the state to a new replacement of the entire 645 miles of Line 5 through Michigan and potentially open the door to heavy tar sands.

 

  • In the interest of full transparency and public knowledge, this board can do the people of Michigan a service by asking for a full public accounting for this deal, and by demanding a credible adverse weather provision to shut down Line 5 and a comprehensive alternatives analysis as required by law. The future of Line 5 is about the future of the Great Lakes.  And fortunately, public trust law makes this the public’s decision, not a closed-door deal between the Governor and Enbridge.     

 

Thank you.

Liz Kirkwood, Executive Director


 

Ecological disasters do not wait for political elections.


Ecological disasters do not wait for political elections.

And Line 5 at the Straits of Mackinac seems oblivious to the campaign calendar.

To date, the Band-Aid fix-it approach for line 5 has only resulted in Band-Aid size – oh, I mean dinnerplate size -- bare metal spots on the pipeline itself.

The law is clear. Public trust waters are the paramount interest and must be the priority of state protection and action.

Enbridge's ongoing violations on Line 5 are blindingly obvious. And they have continued to mount over the last three years while the state has delayed a safe solution through endless study. A quick sampling of violations includes: lack of adequate anchor supports, loss of protective coating, bent pipeline, bare metal, lack of a credible emergency oil spill response plan, deficient liability insurance, and so on.

Time and time again, Enbridge has asked the public and the state to trust them. And we have only later found out that Enbridge has misled the citizens of Michigan and the state government about the true condition of their aging 64-year-old dual pipelines.

Enbridge has an outstanding permit request to install 22 additional anchors. But the state is in no position to authorize these permits because the anchors themselves have caused the bare metal exposure on the pipeline.

Now the state has decided to engage university experts to spend months finishing a risk study put on hold last summer due to contractor conflicts of interest. A risk study only further delays meaningful state action on Line 5 to avoid a pipeline oil spill. We already know that the risk of any oil spill in the heart of the Great Lakes is unacceptable. Thus, we are merely asking ourselves: How fast will the Titanic sink? 1 hour or 3 hours.

Any credible risk study will simply conjure a more realistic disaster scenario than Enbridge would like us to imagine. It appears that the state is committed to completing the risk study; however, it should at the very least recommend that the state temporarily shut down the flow of oil while the risk study marches on.

No one today would ever authorize oil pipelines to pump 23,000,000 gallons of oil daily in the open waters of the Great Lakes. While consultants completes a risk analysis, the state at a bare minimum should temporarily shut down the flow of oil.

So let's be clear ourselves. Line 5 must be decommissioned and we, the citizens of Michigan, demand that this process starts immediately.

The time to act is now.


Liz Kirkwood is FLOW's Executive Director, an environmental lawyer with seventeen years of experience working on water, sanitation, energy, and environmental governance issues both nationally and internationally. She oversees the direction of the organization, prioritizing policy research and corresponding educational initiatives to ensure their consistency and high quality. 

Statement to Pipeline Safety Advisory Board

Line 5 Pipeline

 

The state pipeline safety advisory board met Monday to discuss next steps on Line 5 at the Straits of Mackinac, in the wake of new revelations about shoddy Line 5 maintenance by Enbridge. FLOW's statement at the meeting said enough is known about the pipeline's condition and poor maintenance for the state to immediately revoke the pipeline's easement to traverse the Straits.