Tag: Michigan

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


FOR IMMEDIATE RELEASE:                                                                                         January 2, 2019

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


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


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

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

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

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

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

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

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

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

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


Lame Ducks, Lamer Policies


When Michigan voters cast ballots November 6, they did not express support for attacks on the state’s water resources.  But that’s what they may be getting from Lansing between now and the end of 2018.

In politics, lame ducks are officeholders whose successors have been elected but whose terms haven’t expired.  “Lame” may imply powerlessness, but in fact lame duck officials possess a dangerous power.  They can enact or repeal laws without accountability.  Michigan’s lame duck Governor Rick Snyder and dozens of legislators who won’t return next year are plotting several attacks on the environment.  To put these attacks in a legal framework, Article 4, Section 52 of our state’s constitution declares that the public’s concern for air, water, and natural resources is “paramount,” and mandates that the legislature “shall enact laws that protect the air, water, and natural resources from pollution, impairment, or destruction.”  These lame duck officeholders are determined to do the opposite.

The most prominent of these is Senate Bill 1197, concerning Line 5 and the Mackinac Bridge, sponsored by lame duck Senator Tom Casperson, a Republican from Escanaba.  It would grant Enbridge Energy a blessing to operate its risky 65-year-old petroleum pipelines under the Straits of Mackinac for another decade.  It would do so by diluting the mission of the state’s Mackinac Bridge Authority to include acquisition of lands for, and ownership of, an oil tunnel beneath the Straits. The tunnel, if ever built, would expose the Authority and the taxpayers of Michigan to liability if it ever results in a spill or other accident. 

Coupled with a proposed agreement between the state and Enbridge, the bill seeks to lock the state into a 99-year lease for the Canadian company to use the Straits as a shortcut for routing Canadian crude oil to the Canadian refinery center of Sarnia, Ontario.  Why the haste to finalize a nearly century-long deal in a five-week lame duck session, especially when the new governor and attorney general have expressed opposition to the decaying pipelines and the replacement tunnel?

Concerned citizens from across Michigan are converging on the Capitol Tuesday, November 27 for a Lame Duck Lobby Day against Senate Bill 1197 and the bad Enbridge deal.

This ill-conceived legislation is not the only attack on environmental protections that could become law in the lame duck session.  Others include:

  • Weakening the state’s wetland law to exclude many important, sensitive waters from protection.  The proposal would essentially dumb down Michigan’s wetlands law to meet weak definitions being pursued by the Trump Administration and expose over half a million acres of wetlands to destruction.
  • Weakening the state’s approach to cleanup of chemical contamination, making it harder to set binding cleanup standards and to protect the most sensitive populations, women of child-bearing age and children.
  • Weakening protection of the environment from toxic coal ash by creating a state coal ash landfill program with minimal standards that could allow arsenic and lead in groundwater.
  • Setting weak standards for protection of groundwater and surface water from failing septic systems.  Only Michigan of the 50 states lacks a statewide code for regulation of septic systems, but the bills on which the lame duck Legislature may act fall well short of what is needed.

A few proposals good for Michigan’s environment may get a hearing, too.   Bills to create a sustainable funding source for replacing aging water infrastructure, water quality monitoring, recycling, and contaminated site cleanup may be considered, as well as a measure providing fair tax treatment for small-scale solar generation. 

But the bad far outweighs the good in this lame duck Legislature.  FLOW will work to keep you informed of these threats and what you can do about them during the remainder of 2018.


Thankful for Beautiful Views


Photo by Kenzie Rice


Since I was a kid, I have been taking advantage of the beauty of Michigan. You could say I am a veteran of taking advantage of it at this point. My parents would take my siblings and me on picturesque hikes and to spectacular lookout points, and I would stare out onto the blue horizon.

Porcupine Mountains, Pictured Rocks, Pyramid Point.

The first time I went to Pyramid Point, my sister was a napping infant. My mother watched her, while my father took my brother and me up the half mile trail to the lookout, and then down the 300 feet to Lake Michigan. By the time we climbed back up and made it back to the parking lot, my mother and little sister had all but left us for dead. We were quickly forgiven, as the beauty of the water can captivate anyone for hours.

The view from that day is one of my most vivid memories, and the hikes in that area are still some of my favorite.

Two summers ago, I was in Hawaii, helping a woman on her farm. After initial conversation, it came up that I was from Traverse City. Her response was, “I have traveled all over the world, and that is the most beautiful place I have been.” Not to mention, you don’t often hear people talking about other beautiful places while being in Hawaii.

But she was right. Our Great Lakes are a globally significant resource, for function and beauty. I love hiking along Lake Michigan’s shores and being amazed every single time.

Photo by Temple Florip


A Fresh Start for Fresh Water in Michigan


It is a fresh start for fresh water in Michigan.

Tuesday’s election of a new governor who stressed clean water issues offers opportunities that did not exist before the vote. A chief executive who champions water not only can persuade legislators to act, but also has the ability to act on her own by appointing water protectors to run state agencies and to serve on boards and commissions. And by directing them to take the steps needed to protect our water and our environment generally.

Gretchen Whitmer’s election also provides an opportunity for the state at last to take decisive action to protect the Great Lakes and the Pure Michigan economy from Enbridge’s Line 5 pipelines. She and the new attorney general of her own party will have several legal options for doing so.

Just as important, the new governor can promote water justice. Along with decommissioning Line 5, this is a top priority for FLOW. She can take the lead on legislation that will prevent water privatization by companies like Nestlé and help hard-pressed citizens of urban and rural areas access clean, affordable drinking water. FLOW has drafted model legislation that will serve as a template.

At the same time, the opposing party retains control of both houses of the state Legislature. This sometimes leads to gridlock, but water and health should not be partisan issues. Michigan government has served the people best when protecting the environment was a value shared regardless of party — as in the 1970s, when Republican Governor William Milliken and a Democratic Legislature enacted our landmark environmental laws.

Our new Governor and Legislature are guided by the same state constitution, which says: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”

If the governor-elect and new Legislature operate together in accordance with that mandate, our water will be well protected.


Make More Michigan Underwater Parks

Michigan’s state park system is considered one of the finest in the nation.  Dating back to 1917, the system includes 103 parks and recreation areas that sustain more than 25 million annual visits.

But there’s another, smaller park system, and it’s underwater.

The underwater preserve system is also on public land – the nearly 40,000 square miles of Great Lakes bottomland, all of which is held in trust for the people of Michigan by state government.  The system now includes 13 preserves encompassing 7,200 square miles of lakebed.

Our bottomland preserve law was essentially enacted to protect shipwrecks and promote sport diving, and it has been a success in meeting those objectives.  But the system could be broader in scope.  The state law authorizing these preserves says they can be established wherever a bottomland contains “a single watercraft of significant historical value, includes 2 or more abandoned watercraft, or contains other features of archaeological, historical, recreational, geological, or environmental significance.”  Designation then leads to protection.

There is plenty to protect on Michigan’s lakebed, including ancient forests, unusual geology and biology, fish habitat, and perhaps even archaeological evidence of aboriginal communities.

Federal law provides for marine sanctuaries.  Michigan is the only Great Lakes state containing one, the Thunder Bay National Marine Sanctuary, although there have been proposals for sanctuaries in Wisconsin, Pennsylvania and New York state waters.  The current administration in Washington does not support new sanctuaries.  Thus, it makes even more sense for Michigan to identify, and fund protection of, its underwater resources.


Finally, An Honest Conversation About Line 5’s Real Risks to Our Waters and Our Way of Life

Over three years ago, on July 15, 2015, the State of Michigan’s Petroleum Pipeline Task Force released its recommendations for the state to conduct an independent risk analysis and independent alternatives analysis on the Line 5 pipelines located in the open waters of the Great Lakes. The Governor’s Advisory Board, created by executive order, promised the public these two separate reports by the summer of 2017.

But just before the risk report’s release in June 2017, the state scrapped the report due to a conflict of interest involving Enbridge and the independent contractor who has simultaneously worked on Enbridge’s Line 6B pipeline. Now, three years after the initial study recommendation, we finally have the risk report estimating Enbridge’s liability at $1.8 billion for a worst-case-scenario (WCS) oil pipeline spill in the heart of the Great Lakes.  

FLOW’s 2018 commissioned economic impact report (released in May 2018) — conducted by a nationally respected ecological economist and based on conservative assumptions — estimates $697.5 million in costs for natural resource damages and restoration and more than $5.6 billion in total economic impacts, including:

  • $4.8 billion in economic impacts to the tourism economy;
  • $61 million in economic impacts to commercial fishing;
  • $233 million in economic impacts to municipal water systems;
  • over $485 million in economic impacts to coastal property values.

Our FLOW team attended and testified at the state’s presentation this past Monday, on August 13, 2018, held at Boyne Highlands, and it was the first honest conversation between the state and citizens in a public forum about the real risk Line 5 poses to our waters and our way of life.

A team led by Dr. Guy Meadows of Michigan Technological University presented this independent risk analysis on its 58,000-barrel WCS disaster that would potentially affect 441 miles of Lakes Michigan and Huron shoreline in Wisconsin, Michigan, and Ontario. The Risk Analysis examined impacts to public health, drinking water, cultural resources, tourism, property values, natural resources, and economy. The report’s final section analyzed perceived risk and the social license to operate based on public opinion. To do this, the report reviewed the 45,000 comments submitted in December 2017 on Dynamic Risk’s Alternative Report, and found an overwhelming 80 percent of commentators opposed to Line 5. The reasons articulated by the opposition were grounded in sound science and law, according to Dr. Meadow’s team.

Although the dollar figures are different due to methodologies and assumptions, what the FLOW-commissioned MSU economic impact report and the state’s report demonstrate is this: Line 5 poses an unacceptable risk to the Great Lakes and the State of Michigan. Period.

The risk and potential harm unfairly burdens the citizens, businesses, and tribes of Michigan, and the freshwaters of the Great Lakes. A spill from Enbridge’s Line 5 could contaminate nearby municipal drinking water intakes, devastate some of the commercial, recreational, and tribal fisheries of the Great Lakes, kill aquatic and terrestrial wildlife, impair critical ecosystem services, diminish coastal property values, and tarnish the image of the state of Michigan and perceptions of its high levels of ecological integrity. Even bigger impacts would damage Michigan’s critical tourism industry.

The state’s risk analysis is yet another compelling reason for the state to take swift action to shut down Line 5.


Enjoying the Great Lakes This Summer


Summer in northern Michigan is one of our favorite things, and we are trying to enjoy it to the fullest while it is here. With all of the busyness this season, it does become a conscious effort. It’s not unusual to hear this around the FLOW office: “Wow, is it really already July?”

There are many important things to do. Submit your comments on the fate of Line 5 in the Straits of Mackinac. Write your lawmakers about important Great Lakes concerns. Spread the word about Getting Off the Bottle. But after you do these things, make sure you are also enjoying those Great Lakes that you work hard to protect. That is just as important.

Our updated Beachcomber’s Guide to the Great Lakes has information that may be helpful to you the next time your feet are in the water along Michigan’s coast. The public trust doctrine holds that Michigan’s Great Lakes shoreline is open to public access. It is meant for public use and enjoyment, so what are you waiting for? Grab your guide, and head to your favorite Great Lake!


Latest Enbridge Reports Underscore Line 5’s Vulnerability to 400 Michigan Waterways


FOR IMMEDIATE RELEASE                                                                           June 29, 2018
Contact:  Liz Kirkwood                                                                      Email: Liz@FLOWforWater.org
Executive Director                                                                                           Office: (231) 944-1568
FLOW (For Love of Water)                                                                               Cell: (570) 872-4956


Latest Enbridge Reports Underscore Line 5’s Vulnerability to 400 Michigan Waterways and Ongoing Unacceptable Risk to the Straits


TRAVERSE CITY, MI – Enbridge today released three reports required as part of the November 2017 agreement with the Governor concerning Line 5. The reports examine possible methodologies to mitigate potential leaks from Line 5 in the Straits of Mackinac and at nearly 400 water crossings throughout Michigan.

“These reports from Enbridge provide a stack of evidence supporting the public’s call for Gov. Snyder and Attorney General Schuette to shut down Line 5 right now before there is a catastrophic oil spill in the Mackinac Straits,” said For Love of Water (FLOW) Executive Director Liz Kirkwood, an environmental attorney and a co-leader of the Oil & Water Don’t Mix campaign. “Enbridge acknowledges that Line 5 lacks the latest safety technology, remains at risk of more anchor strikes, and threatens not only the Mackinac Straits but also many Great Lakes tributaries, wetlands, and other aquatic resources along its 554-mile-long route in Michigan.

“The governor and attorney general need to stop promoting their long-term dream of a Canadian oil pipeline tunnel under the Straits and across nearly 400 waterbodies in Michigan alone, and finally confront this danger to the Great Lakes, our drinking water, and our jobs tied to the Pure Michigan economy.”

Of particular concern, information in the three reports released Friday by Line 5-owner Enbridge reveals that:

  • Water Crossings Report: This report reveals that Line 5 crosses nearly 400 Michigan waterways, almost double the number of lakes, rivers, streams and wetlands Line 5 was thought to cross. This should shine a light on the fact that not only are the Straits of Mackinac at risk to a potential catastrophic oil spill, but so are 400 waterbodies in our state. According to NWF’s FOIA review, since 1968, Enbridge’s Line 5 has ruptured at least 29 times on land, rupturing over 1.1 million gallons of oil into Michigan’s environment.
  • Technology Reports: (1) Underwater Leak Detection Report: This report examined three external leak detection technologies and concluded that not one of them could provide continuous real-time monitoring that was practical, cost-effective, or operationally proven. With costs ranging between $4 and $40 million, the report used a net present cost assuming a 20-year operating and maintenance period. Both of the optical camera options would require 1,800 cameras on the dual pipelines. (2) Coating Technologies Report: As a part of the leak detection report, the coating technology report ignored the fact that Enbridge’s screw-anchor engineering efforts caused coating pipeline loss in over 80 locations, and does not address how Enbridge will attempt to remedy this major design defect as they work this summer to install another 22 anchors and then possibly 48 more. These anchor permits are currently being challenged at the administrative level by a citizens’ group (Straits of Mackinac Alliance) and the tribes (Grand Traverse Band of Chippewa and Odawa Indians).
  • Anchor Strike Mitigation Report: This report noted that the probability of a failure of an anchor strike to the existing dual pipeline is two to three times higher than the values provided in the November 2017 Dynamic Risk alternative analysis report. Enbridge’s report concludes that the most effective option to mitigate anchor strikes to the dual Line 5 pipelines in the Straits is to cover both lines with a protective barrier consisting of approximately 360,000 cubic yards of gravel and rock. However, this protective barrier would not allow for visual inspection of the pipeline and would impede any external maintenance to Line 5 within the Straits. The protective barrier option also poses environmental risks including disturbance to fish habitat, disturbance to lake vegetation, impacts to water clarity, and potential exposure to toxins during its estimated 2-3 year construction timeline. Notably, this report omitted any mention or analysis of the recent anchor strike that caused an estimated 600 gallons of dielectric fluid to enter the waters of Lake Michigan and dented Line 5 underwater pipelines in three locations.

Fundamentally, the question remains: Why didn’t the State of Michigan require a comprehensive engineering study evaluating the anchor hooking risks as well as the currents, gravitational and thermal stresses of the new elevated pipeline with its 128 screw anchors as compared to the original lakebed support design?

The three reports released today but dated June 30 can be found at: https://mipetroleumpipelines.com/document/enbridge-reports-november-2017-agreement

Public comments will be accepted before July 15 regarding the action the state should take to address the future of Line 5.

###

Why Michigan Citizens for Water Conservation’s Contested Case Against the Nestlé Water Permit Is Right and Necessary

plastic-water-bottles-privatization-commodidization

Permits that Harm Water and Natural Resources

Michigan officials have been busy this spring — busy handing out permits to take or destroy Michigan’s water and natural resources in violation of clear constitutional and legal mandates: A mandatory duty to protect the public’s paramount interest in our air, water, and natural resources; a duty to prevent impairment of our water, wetlands, natural resources; a public trust duty to protect our water from loss, diminishment or harm; and a duty to protect the paramount concern for public health.[1]

This is nothing new from our federal government these days, with President Trump and EPA head Scott Pruitt not only gifting permits, but outright attacking Clean Air Act rules that protect our health and seek to control greenhouse gases from fossil fuels, and repealing well-designed rules that protect the waters of the United States from pollution and loss. But are Michigan’s officials–its governor, director of the Department of Environmental Quality, its attorney general—doing something similar?

Our officials in Michigan may not be as brash and openly hostile towards health, water, air, and the environment as our federal officials, but their record of indifference is just as bad if not worse, and the recent permit to Nestlé to divert 400 gallons a minute or 576,000 gallons a day from the headwaters of two pristine creeks is “People’s Exhibit One.” This is why it was imperative that Michigan Citizens for Water Conservation and the Grand Traverse Band of Ottawa and Chippewa Indians filed contested-case petitions against the DEQ’s approval of the most recent Nestlé permit. Their petitions are spot on. Our leaders have gone from indifference to deliberate damage. Unlike federal leaders, Michigan officials don’t come right out and admit they’re anti-water or environment. They do their damage by bending and twisting the law to justify a permit, and telling the public through well-crafted media releases that they have studied the matter more extensively than ever and followed the rule of law. If citizens and organizations like MCWC and the Grand Traverse Band (or Save Mackinac Alliance, who recently filed a petition against more band-aid supports of a failed Line 5 design in the Straits) didn’t take on our officials, we’d never know what really happened, and everyone would blithely slide into summer as if everything was pure as ever. Well, it’s not.

In the last few months, Michigan officials have managed to do all of the following:

  • Issue a permit to Nestlé to divert 400 gallons a minute from the headwaters of Twin and Chippewa Creeks by interpreting or relaxing the law to help Nestlé get the permit;
  • Issue another permit to Enbridge for 22 more anchors to support a failing pipeline design in the Straits of Mackinac, now totaling 150 anchors and suspending a pipeline built to lay in the lakebed 2 to 4 feet in the water column, so the line is more vulnerable to powerful currents and ship anchors than ever;
  • Approve a permit to convert a small state fish hatchery into a large commercial fish farm that diverts and discharges untreated water from the fabled AuSable River;
  • Issue a permit for 11 groundwater wells to remove 1,350 gallons a minute or about 2 million gallons of water a day, and inject it more than a mile down in the earth to mine potash, and leave it there;
  • Issue a permit for a 700-foot deep, 83-acre open pit gold mine in wetlands along the Menominee River near Iron Mountain;
  • Sign or support an agreement with Enbridge to build a new heavy tar sands tunnel 5 years from now to replace Line 5 while ignoring the legal limitation that the Great Lakes are off limits for crude oil pipelines under the lakebed just like oil and gas development, and ignoring the fact that there are obvious alternatives like adjusting in a relatively short term the capacity in the overall crude oil system that runs into Michigan, Canada, and elsewhere.

Does the DEQ or State ever deny a permit anymore? Do they ever take legal action to protect rather than defend these permits? Almost never. It’s always up to citizens and organizations like MCWC, the tribes, and citizens. It shouldn’t be this way, but with the deliberate anti-water, environment and health track record of the State, it’s reality. MCWC’s case to contest the Nestlé 400 gallons per minute (“gpm”) permit is a good example.

Last week, Governor Snyder tried to brush off a television reporter’s question about the Nestlé permit, offhandedly saying he thought the state “followed the law,” and that any “other objections like hundreds of millions of dollars to Nestle without paying a dime for the water were policy matters.” When the DEQ issued the permit, Director Heidi Grether also stated that the DEQ “followed the law,” and that the department’s review was the “most extensive in history.” That’s how it works these days, permits are issued, our state leaders hide behind a façade called the “rule of law,” “comprehensive review,” or “the most extensive review in history.” Ironically, citizens and organizations have placed the law before the Governor, Attorney General Schuette, and Director Grether on Line 5 and Nestle so these permit applications were under the “rule of law,” and these officials have done everything they can do to obstruct the rule of law. Governor Snyder skirted the Great Lakes Submerged Lands Act and other laws with his private deal with Enbridge to rebuild Line 5. Director Grether refused clear legal standards in approving the Nestle permit. And Attorney General Schuette’s office has been behind these maneuvers at every turn.

So, is this true, or are our leaders beguiling us into thinking they’re doing their job? MCWC’s petition for contested case appears to answer the question. Here’s what MCWC’s petition shows:

Strike One

The DEQ’s permit on its face postponed the very factual determination required by the Safe Drinking Act and the Water Withdrawal Act before a permit can be approved: Does the existing hydrological data, including actual calculated effects on flows and levels before and after pumping required before a permit can be issued, show adverse impacts or impairment to public or private common law principles? The DEQ issued the permit without the existing data and conditions, relying on Nestle’s self-serving computer model, and postponed the required evaluation and finding to an after-the fact- determination.

Strike Two 

Both the Safe Drinking Water Act and Water Withdrawal Act have special sections for bottled water withdrawals that require the applicant to submit and the DEQ to evaluate the existing hydrologic, hydrogeological (soils and water), and environmental conditions. Unfortunately, all Nestlé submitted was a computer model that calibrated its own parameters to reach the conclusion that the pumping would cause no adverse impacts, and several years of intermittent measurements of flows and levels without reference to actual drops in flows or levels of the creeks and wetlands before and during pumping. The required measurements and data required to evaluate existing conditions were established by penetrating and extensive analysis of flows and levels and the effects during pumping on creeks, wetlands, and nearby lakes in the MCWC v Nestlé case in Mecosta County over a DEQ permit to pump 400 gpm. The appellate courts found unreasonable harm when the actual existing data was used to calculate the effects and adverse impacts from pumping. When it did so, the courts determined that 400 gpm from headwaters of the creek and two lakes was unlawful, that it would cause substantial harm. Nestlé and DEQ know this, yet the agency issued the permit in this case without requiring the information on existing conditions required by the law.

Strike Three

The DEQ compounded the error by limiting its after-the fact evaluation to the additional 150 gallons per minute, not the whole 400 gpm. In effect, the DEQ implicitly authorized the first 250 gpm, rubber-stamping Nestle’s 2009 Safe Drinking Water approval for the first 150 gpm, and Nestle’s 2015 registration and Safe Drinking Water approval for an additional 100 gpm. Section 17 of the Safe Drinking Water Act requires a specific permit and determinations for any withdrawal for bottled water that exceeds 200,000 gallons per day. While Nestlé had received a well permit to pump 150 gpm or 216,000 gallons a day in 2001, our officials turned their back on Section 17 of the Safe Drinking Water Act when Nestlé asked for final approval in 2009. When the additional 100 gpm was registered in 2015, bringing the total 250 gpm or 276,000 gallons a day, our officials turned their back again. The DEQ’s recent 2018 permit for 400 gallons a minute allowed Nestlé to avoid obtaining the permits for the 2009 and 2015 expansions required by Section 17 of the Safe Drinking Water Act.

So there you have it: strike three, you’re out. Our state officials didn’t follow the law, and they didn’t study the legally required existing data and information– extensively studying the wrong data is meaningless. So, the answer is, our officials beguile their constituents and citizens into thinking they are “following the law” and “extensively evaluating” the information to fulfill their duty to protect the water, natural resources, public trust and health, when in fact they deliberately shaved and relaxed the legal standards in favor of Nestlé so the officials could approve the permit they were going to issue in the first place.

The die is cast. The permit is reviewed, the permit is issued, the news release sugar coats it, and the water, environment, and people’s quality of life or health are damaged or put at serious risk. In a way, this seems worse than the federal government’s blatant attack on water, environment, climate, or health. Why? Because it’s done behind closed doors with calculated manipulation of the law to achieve a deliberate result: Issue the permit even if it is likely to cause harm. At least President Trump and EPA head Pruitt acknowledge what our leaders are too afraid to admit: “We are anti-environment, anti-water, anti-health, and pro-corporation and exploitation no matter what the cost, and we intend to bend, dismantle, and repeal these laws if necessary to get our way.” Oh, really, that’s not happening here in Michigan, is it? Our leaders deliberately follow their own law, then issue the permit.

Jim Olson, President and Founder

Thank you MCWC, Grand Traverse Band, and all of those people and organizations in Michigan who take our leaders to task for violating their constitutional and public trust duties to protect the air, water, quality of life for all of us. They deserve our whole-hearted support. This is real citizenship and democracy in action. This is why contested cases and lawsuits are necessary and good for Michigan.

 


[1]These legal duties on our leaders are mandated in the order stated: Michigan Constitution, Art. 4, Sec. 52; Michigan Environmental Protection Act and Supreme Court decisions, notably Ray v Mason Co Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975) and State Hwy Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974); the common law public trust doctrine; and Michigan Constitution, Art. 4, Sec. 51.


Saving the Straits of Mackinac

Saving the Straits of Mackinac

Yesterday, May 22, 2018, marks the day that our state’s citizens, threatened with the terrible harm of an oil spill from a failed Line 5 in the Straits of Mackinac, took matters into their own hands. The Straits of Mackinac Alliance (SMA) filed a contested-case petition with the Administrative Law Tribunal of Michigan. The tribunal hears cases, like a trial court, when citizens oppose state permits that violate the law. The SMA has filed a petition that would require the Department of Environmental Quality and Attorney General Bill Schuette to start applying state law that is supposed to protect the Great Lakes, and stop the flow of oil through Enbridge Line 5 in the Straits. The filing of this contested case is a major shift in this prolonged affair, a shift that will finally bring state officials and Enbridge under the rule of law. This essay explains why. But first, a brief history of what has happened to force citizens to take charge because leaders have failed to act is in order.

A Brief History

In September 2015, Michigan Attorney General Schuette staged a flurry of media events to proclaim that days of crude oil transport in the twin pipelines under the Straits of Mackinac “were numbered.” His exclamation came on the heels of the release of the Michigan Petroleum Pipeline Task Force’s report that concluded a spill in the Straits was unacceptable to anyone, that the State had jurisdiction over the siting and existence of the pipeline under a 1953 easement and the public trust in the Great Lakes that is embodied in a state law known as the Great Lakes Submerged Lands Act–the GLSLA. Enbridge was forewarned. The State was going to take charge, right?

Wrong. Within a few days, the media messaging from the Governor’s office was (to paraphrase): “Sure it’s days are numbered, but that number could be a long time.” Shortly after that, the Governor appointed the Michigan Petroleum Pipeline Advisory Board– a well-intended study commission with absolutely no power to do anything that would bind Enbridge or the State. The Advisory Board has met for almost three years now. Before the Board could agree on any suggested course of action for the State to address Line 5, in late 2017 Governor Snyder bypassed his own advisory board and unilaterally signed an agreement with Enbridge that establishes a framework for the long-term flow of crude oil across the Straits of Mackinac. The agreement gave Enbridge permission to replace the segment of Line 5 under the St. Clair River and to replace Line 5 on the bottom of the Straits with a tunnel or trenched pipeline to escape the strike of ship anchors. If not contested under rule of law that protects the public trust in the lakebeds and waters of the Great Lakes, the investment in replacement could all but seal the replacement of the 645-mile long Line 5. The agreement rubber-stamps Enbridge’s efforts to spend billions to entrench its own massive Keystone XL pipeline right here in the Great Lakes. Michigan has become the host state for the transport of Canadian tar sands oil to Canada and foreign ports, including that charming land of royal weddings– Great Britain. Why does the governor and not the law of the Great Lakes and the citizens of Michigan through our elected officials or under rule of law decide the fate of crude oil in and out of the Great Lakes basin?

But this is only half of the story. While the advisory board continued to hold meeting after meeting for the public to vent its frustration, the DEQ and Attorney General unwittingly if not unlawfully cooperated with Enbridge to keep the oil flowing through pipelines in the Straits, pipelines whose design is failing. Enbridge submitted information that showed loss of protective cover. Then the company disclosed the Kiefner Report, a 2016 survey of the twin pipelines that referred to a 2003 report that warned of scouring under the lines, leaving spans as long as 282 feet suspended in the water column above the lakebed and exposing the lines to powerful currents that could whip them back and forth like a coat hanger. The Kiefner report also disclosed a series of emergency measures to address the failure of the original design that was supposed to lay, tucked into the bottomlands under the Straits. In 2001, the company tried to stabilize the twin lines with grout bags. When these failed, the for the company fastened 16 saddles to the pipelines, supporting the saddles and lines by leg supports crewed into the lakebed. This was just the beginning. Scouring has plagued the integrity of these pipelines so much, that from 2001 to 2018, Enbridge has installed 150 supports– almost two miles of pipelines are suspended in the water like a bridge over the lakebed.

A New or Changed in Design

The installation of these anchor supports has completely changed the design of the pipelines in the Straits. And this has been done with the knowledge and help of the DEQ and Attorney General Schuette. Here’s how. Since 2014, Enbridge has filed several applications for permits under the GLSLA to install these anchor supports as “repairs” or “maintenance” measures.  Enbridge received its most recent “repair” permit on March 25, 2018 for the 22 supports mentioned above. In April Enbridge filed yet another application for 48 more supports to the pipelines— if approved, nearly 3 miles of pipeline originally designed in 1953 to lay on the lakebed will be suspended in the water!

How did Enbridge change miles of its original design as “repairs” or “maintenance?” The DEQ and Attorney General have dropped the ball. It’s called complicity. In 2017, citizens in the Straits, the Grand Traverse Band of Ottawa and Chippewa tribe, and For Love of Water (FLOW) filed extensive reports that demonstrated this substantial change in design carried serious and imminent risks. Evidence showed that currents or other natural forces pulled the anchors out of the lakebed, scraped off pipeline coating to bare metal, exposing the lines to corrosion. Equally disturbing, these reports demonstrated that the massive change in design of the pipelines has never been approved or authorized by the DEQ as required by law. Despite these proofs and clear legal requirements, the DEQ and Attorney General staff stonewalled the tribe’s and citizens groups’ patently obvious charge that miles of suspended pipelines were a new or substantial change in design, not “repair” or “maintenance,” subject to required comprehensive review under the GLSLA and public trust in the lakebed and waters of the Straits.

This spring, an anchor from a vessel struck a pipeline enclosing an electric line across the Straits that released contaminants. It turns out inspections have shown that the anchor struck the Enbridge pipelines, denting them by a half-inch. In addition to strong currents, the greatest risk identified by experts to the pipelines in the Straits is an anchor strike. Fortunately, the anchor struck near but not along segments of pipelines suspended above the lakebed.  If it had, the result could have been catastrophic. There’s nothing like a “repair” that changes the design of these pipelines in a way that will snag anchors dragging over them from a passing ship.

So what does the GLSLA say about these permits for “repair” or “maintenance?”  Nothing. The GLSLA law and regulations do not provide for these kind of under-the-radar permits. The DEQ and Attorney General have interpreted the law to favor Enbridge. In legal fact, the GLSLA requires that a new, altered or changed structure or improvement like the addition of miles of suspended pipeline in the waters of the Great Lakes must obtain a new agreement for occupancy and permit for the new pipeline design and structures. The GLSLA requires Enbridge to file a comprehensive study of all potential adverse impacts that could arise from such a change in design of the pipelines. The law and regulations also require Enbridge to prove there are no other feasible and prudent alternatives to Line 5 in the Straits– including the obvious adjustments to the capacity in Line 6b (now 78) across southern Michigan to Sarnia. The design capacity of Line 6b was doubled after the Kalamazoo River spill, and can handle crude oil flowing through Line 5 in the Straits.

Taking Matters Into Their Own Hands

In short, DEQ and Attorney General have sided with Enbridge in allowing the continued flow of oil in pipelines that have been substantially redesigned without authorization or approval under the GLSLA. Officials claim the supports are better than doing nothing, that some of them are required by a consent decree, that it’s a matter of safety for the pipelines. This misses the point. If there is no authorization under GLSLA for the new or modified design, and if it hasn’t been evaluated or permitted as required by the law, then why does it matter that oil should continue to flow through Enbridge’s pipelines? It doesn’t. If there is no authority, the new design has not been evaluated, the new design and existing line are failing, and risks are imminent, it is unlawful. For three years, government officials could have taken charge.

But they haven’t. All our leaders have to do is invoke the GLSLA law and rules, demand Enbridge obtain authorization and permits for the new design as a whole, and demonstrate no potential adverse effects, and no alternative. Until Enbridge does this, the GLSLA authorizes emergency measures or conditions– at this point quite obvious– to suspend the flow of oil in these dangerous lines until the company has the authority required by law. If the company cannot establish this according to the rule of law under the GLSLA, then the authorization and permits for this new or substantially changed design should be denied. Enbridge can use its thousands of miles connecting to other pipelines in North America. But there is no alternative if there is a spill or release in the Straits of Mackinac.

Jim Olson, President and Founder

I applaud the Straits of Mackinac Alliance and citizens and the Grand Traverse Band for filing a contested case. In my view, they are on solid ground. Finally, someone has decided to do the job that our government leaders should have done. I applaud my own organization for charting a course that brings Enbridge Line 5 under the rule of law, not a bureaucratic invention. I urge our Governor, Director of DEQ, and Attorney General to join the side of citizens and tribes and invoke the available rule of law under the GLSLA to protect the Great Lakes.