Tag: Public Trust

OP-ED – Great Lakes Echo: Public trust demands Great Lakes phosphorus cuts

Click here to read the article in the Great Lakes Echo

Commentary

  • Editor’s note, Jim Olson is president of FLOW, a Traverse City-based non-profit legal policy and action organization whose mission is to advance public trust solutions to save the waters of the Great Lakes Basin.

By Jim Olson

The health and public use and enjoyment of the Great Lakes is under siege from systemic threats like climate change, extreme water levels, Asian Carp and other invasive species, and nutrient pollution.

One of the most pernicious dangers is the resurgent excessive phosphorous and other nutrient runoff from farming practices and lack of proper sewage treatment. Moreover, the situation is worsening because of climate change. This nutrient loading has resulted in devastating, harmful algal blooms like the “dead zone” that extended over western Lake Erie in the summer of 2011, covering an area the size of Rhode Island and Connecticut. These algal blooms turn the surface and shores of the Great Lakes into a toxic soup, closing beaches and drinking water plants, killing fish and fishing, marring private property and public beaches, and discouraging tourism.

Lake Erie harmful algal bloom dead zone fish killThese impacts strike at the heart of the Great Lakes and the uses enjoyed and valued by the 40 million residents who live in the Basin. In 2013, Toledo had to spend $1 million to treat its drinking water from toxic globs of algae. Unchecked, this chronic, worsening problem will strike a blow to the economy and quality of life in the Great Lakes region.

Binational report urges action

Fortunately – with a sense of urgency – the International Joint Commission (“IJC”), the bi-national United States and Canadian governing board charged with protecting the Great Lakes, issued its Report of the Lake Erie Ecosystem Priority(February 2014) – A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms.The report calls on Michigan, Ohio, New York, and Pennsylvania, and the province of Ontario to take immediate steps to stop this devastating toxic nuisance before conditions worsen, not only in Lake Erie but also in Lake Huron and on the shores of Lake Michigan as far north as the pristine Door Peninsula and Sleeping Bear Dunes National Lakeshore.

Unfortunately, efforts to date have not reduced phosphorus or curtailed this massive problem, which is too large, too harmful, and too costly to the lakes, their ecosystem, and the 40 million people who live in the Great Lakes region to let this languish a year longer.

While the challenge is daunting, the IJC has taken the helm and focused its scientific studies and strong policies on the responsibility of the states, province, and others whose practices are causing the harm to Lake Erie and parts of the other Great Lakes. The IJC has recommended at a minimum a cut in phosphorus loading from farming and sewage overflows and other runoff by nearly 50 percent. Possible actions include the setting of a total phosphorus limit in Lake Erie and adoption of best practices for the management and use of fertilizers on farms and lawns.

Not only has the IJC set the target at nearly 50 percent and fingered the actions that need to be taken through voluntary cooperation, it has established a fresh legal and policy framework – or blueprint – for sharing responsibility, taking action, and, if necessary, implementing enforcement. The IJC has invoked a fundamental principle embedded in custom and law of the states and province on the Great Lakes – the duties imposed under “public trust” law in navigable waters and their tributary watersheds. In its report, the IJC recognized and urged states and Ontario to apply public trust principles as an overarching measure to address and solve the systemic threat of phosphorus and algal blooms in Lake Erie.

A framework for the public trust

The governments of Canada, the United States, Ontario and the states that share a common boundary on Lake Erie could apply a public trust framework, a set of important common law principles shared by the states, provinces, and both countries. Under these principles the governments should hold Lake Erie as a public trust for their citizens. The public trust framework would provide the governments with an affirmative obligation to assure that the rights of the public with respect to navigation, fishing, swimming, and the water and ecosystem on which these uses depend are protected and not significantly impaired.

In 1892, the United States Supreme Court established a principle that the Great Lakes and their protected public trust uses for boating, swimming, fishing, and other recreation can never be interfered with or significantly impaired now or in the future. A framework with a benchmark is necessary for the immediate reduction of phosphorus in Lake Erie and the other Great Lakes. The framework for cooperation and enforcement to achieve this benchmark is the public trust – a refreshing, straightforward contrast to the layers of rules and regulations that have been unable to stop the spread of devastating toxic algal blooms.

Lake Erie Nutrient Pollution Harmful Algal Bloom Dead Zone public trustAlgal blooms and toxic algae “dead zones” can be prevented and Lake Erie restored by reducing phosphorous loading from farming, sewage overflows, and fugitive residential and commercial fertilizing. If we continue to engage in dialogue but chose not to implement measures or options that will reduce phosphorous and restore Lake Erie, more beaches will close, commercial fishing will dry up, and tourism, riparian property values, public use of the lakes for recreation and enjoyment will continue to sink. The public trust provides a fresh approach based on traditional, time-tested principles that will provide the framework from which the states, stakeholders, and all citizens, who are the legal beneficiaries of this trust, can work together with shared responsibility to save this magnificent shared commons.

The IJC should be commended for this bold and positive step and for its leadership in urging the states and Ontario to implement the public trust principles that apply to all of the states and Ontario and their citizens. These principles move this bi-national issue to a higher level centered on our core values – water protection and restoration, quality of life, and a sustainable economy – that honor the public trust that, in the long run, will protect the waters and uses on which we, our children, and grandchildren depend.

As a citizen beneficiary of the public trust in our Great Lakes, read the report, send the IJC a letter or email thanking the commissioners for taking the action they did in issuing it. Send an email, a letter, and make a phone call to the leader of your state or province, urging application of this public trust framework and these principles. If we follow the benchmark through public trust principles, we will establish a framework for these common waters and interdependent economy and quality of life for this and future centuries.

All hands on deck – for implementing the public trust for water!

  • Reach Jim Olson at FLOW, 153 ½ E. Front Street, Traverse City, MI 49684. Phone: 231.944.1568. Additional background on the author and FLOW.  On May 13 FLOW is hosting a webinar on nutrient pollution and algal blooms. Space is limited; registration required.

FLOW Awarded NMEAC John Nelson Water Steward Award

Click here to view and download the press release as a PDF.

May 2, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director

231 944 1568 or liz@flowforwater.org

FLOW Awarded NMEAC John Nelson Water Steward Award

TRAVERSE CITY– On April 25, 2014, Northern Michigan Environmental Action Council (NMEAC) honored FLOW with the John Nelson Water Steward Award at their Annual Environmentalist of the Year Celebration. This award recognizes organizations for their water stewardship efforts. Its namesake, John Nelson, is the Grand Traverse Baykeeper, whose extraordinary leadership protects the waters through informed citizen and government engagement.

2014 marks NMEAC’s 26th year recognizing individuals and organizations who effectively advocate environmental awareness and protection in Northern Michigan. NMEAC was established in 1980 and is the region’s oldest grassroots environmental advocacy organization, influencing five county regions throughout Northwestern Michigan. The all-volunteer organization continues to operate under the mission: “Preserving the natural environment through citizen action and education.” http://www.nmeac.org/

“There was nobody more deserving than Jim Olson and Liz Kirkwood for the John Nelson Water Steward Award. The amount of time FLOW spends mentoring and inspiring our community is priceless. They are a true powerhouse team!” says June Thaden, a member of the board of directors for NMEAC.

FLOW’s mission is to advance public trust solutions to save the Great Lakes. To address the basin-wide systemic threats facing the Great Lakes, FLOW educates decision-makers and communities about the public trust doctrine and the commons as ways to protect our majestic Great Lakes.

Under the public trust, water is protected as a shared resource for the benefit of current and future generations. Our government’s job is to protect the water for everyone as a trustee. And citizens can assert their rights if our common waters are not being adequately protected as a shared resource and legacy for future generations.

It is such an honor to receive NMEAC’s John Nelson Water Steward Award, named after our revered Grand Traverse Baykeeper who serves as the eyes, ears, and voice of this beautiful bay,” remarks Executive Director, Liz Kirkwood. “Like John Nelson and his stewardship work connecting citizens and decision-makers, FLOW works with local governments and high-level decision-makers to develop long-term policy solutions that protect our waters as a commons,” she says.

FLOW’s current programs include: (1) extreme energy transport and the Line 5 pipeline under the Straits of Mackinac; (2) local government ordinances to protect against air, water, and land impacts of fracking in Michigan; and (3) legal strategies to address nutrient pollution in Lake Erie and beyond. FLOW collaborates with local, regional, national and international organizations to promote policy changes and deepen public awareness through policy papers, presentations, and public events. This fall, FLOW will host the Wild & Scenic Film Festival in Traverse City.

FLOW is grateful to organizations like NMEAC, which provide a platform to build important partnership coalitions and to work together to address key environmental issues.

# # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

 

 

Longtime FLOW Volunteer Eric Olson Steps Down as Communications Director

Eric Olson, FLOW, Great Lakes, public trust, policy center, water

Click here to view and download the press release as a PDF.

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org

Longtime FLOW Volunteer Eric Olson Steps Down as Communications Director, Maintains Position as Board of Directors Vice Chair

TRAVERSE CITY, MI – Presiding selflessly as an unpaid volunteer Executive Director from 2009 to 2012 and then as Communications and Education Director from 2012 to April 2014, Eric Olson has stepped down from his staff role and now maintains his position as Vice Chair and interim Secretary of the Board of Directors.

Eric Olson has been with FLOW since its infancy, and was the first Executive Director. He joined FLOW to help realize the lifelong dream of his brother—FLOW Founder and President Jim Olson—to start a Great Lakes policy and education nonprofit.

“Jim, of course, infected me with his passion for the Great Lakes, the public trust, and water justice,” says Eric Olson.

“If it were not for my brother Eric joining forces with me to form the original FLOW coalition, FLOW would not be the thriving, cutting-edge water policy and education nonprofit organization it is today,” says Jim Olson.

Some of Eric Olson’s notable contributions to FLOW include:

  • transitioning FLOW from a coalition to a nonprofit,
  • reimagining the FLOW website,
  • launching and managing FLOW’s Facebook page,
  • growing the very beginning of the Great Lakes Society, and
  • networking to bring FLOW together with world-renowned water advocate and National Chairperson of the Council of Canadians, Maude Barlow for a series of speaking engagements and workshops across the Great Lakes Basin.

“Eric has worked tirelessly to build a movement and a coalition of organizations and individuals dedicated to protect the Great Lakes as a commons. We are so grateful to him for his volunteer work and service. Because of Eric, FLOW has become a strong policy and educational center for the Great Lakes,” remarks Executive Director Liz Kirkwood.

Eric Olson, who resides in Rochester Hills, MI with his wife Joyce, gave enormous amounts of his free time to FLOW during what he calls his “semi-retirement” from commercial real estate. He spent countless long weekends travelling hundreds of miles, dedicated to helping forge FLOW from an idea into reality.

“FLOW started because of the need to address questions and threats to the Great Lakes and waters of Michigan, and Eric understood the magnitude of this. He also shared the larger vision of the right of the public to use and enjoy the Great Lakes and our common waters, and the importance communicating this to the public in addition to our research and reports submitted to government leaders. Because of Eric, we now have a strong communications program and several partner organizations around the Great Lakes, in addition to our water policy program and projects,” says Jim Olson.

Eric Olson will remain with FLOW as Vice Chair and interim Secretary of the newly expanded Board of Directors, and his staff leadership legacy will continue to benefit FLOW for many years to come. “I’m looking forward to continue serving on the Board as Vice Chair to ensure FLOW’s leadership in educating the public and our government leaders about the threats facing our Great Lakes and the solutions FLOW is advancing to protect these majestic waters. These solutions not only protect the Great Lakes but also the public’s rights and responsible uses of these waters that have been handed down generation to generation by our forefathers through public trust doctrine,” says Eric Olson.

Serving alongside Vice Chair Eric Olson is newly-elected Board of Directors Chair and attorney Mike Dettmer. Also joining the FLOW Board of Directors this spring are former Executive Director of the Grand Traverse Land Conservancy, Lew Coulter; Senior Editor of Circle of Blue, Keith Schneider; and Food & Water Watch Water Program Director, Emily Wurth.

# # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes.

Virtual Townhall Webinar: A New Vision and Framework to Address Nutrient Pollution and Harmful Algal Blooms in Lake Erie and Beyond

Click here to view and download the press release as a PDF

April 24, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwoood, Executive Director
231 944 1568 or liz@flowforwater.org

May 13 Virtual Townhall Webinar Convenes Top Experts on Nutrient Pollution

Panelists Discuss Harmful Algal Blooms on Great Lakes

TRAVERSE CITY, MI – Registration is limited for the May 13 12pm ET webinar on Nutrient Pollution, Harmful Algal Blooms, and Dead Zones in the Great Lakes.

 A New Vision and Framework to Address Nutrient Pollution and Harmful Algal Blooms in Lake Erie and Beyond

Join Dr. Don Scavia (University of Michigan), Dave Dempsey (International Joint Commission), Codi Yeager-Kozacek (Circle of Blue Correspondent), and Jim Olson (Founder, FLOW) for an interactive webinar discussion on nutrient pollution and resulting harmful algal blooms (HABs) in the Great Lakes, and how the public and the states together can utilize the public trust doctrine framework as an added decision-making tool to address HABs in Lake Erie and beyond.

Date: Tuesday, May 13, 2014 at 12 – 1:30 pm EST

Speakers:

Dr. Don Scavia (University of Michigan) will set the stage and provide the scientific foundation and causation of phosphorus pollution and resulting HABs in Lake Erie.

  • Dave Dempsey (International Joint Commission) will describe the IJC’s most recent bi-national recommendations to tackle nutrient pollution in Lake Erie. 
  • Codi Yeager-Kozacek (Circle of Blue Correspondent) will share stories about agricultural practices and their impacts across the Lake Erie basin. 
  • Jim Olson (Founder, FLOW) will discuss the states’ roles in applying the public trust framework to set enforceable phosphorus limits and address nutrient pollution.

Moderated by Liz Kirkwood, Executive Director, FLOW

Description: In 2011, Lake Erie experienced an unprecedented harmful algal bloom (HAB) that covered most of its western basin and created a “dead zone” the size of Delaware and Rhode Island combined. The slimy green algae excrete toxins that result in closed beaches, threatened drinking water, and harmed fish and wildlife. The International Joint Commission (IJC) – the bilateral agency founded in 1909 to help manage the Great Lakes and boundary waters of the United States and Canada – just released its 2014 Lake Erie Environmental Priority (LEEP) Report. In the final LEEP report, the IJC encourages states and provinces in the Great Lakes Basin to apply the public trust as a framework for future policy decisions in order to prevent and minimize HABs in Lake Erie:

 “The governments of Michigan, New York, Ohio, Pennsylvania and Ontario should apply a public trust framework consisting of a set of important common law legal principles shared by both countries, as an added measure of protection for Lake Erie water quality; government should apply this framework as an added decision-making tool in policies, permitting and other proceedings…”

With the IJC’s invaluable recent support, the opportunity is ripe to utilize the public trust doctrine as a tool to address HABs in Lake Eerie and beyond. This webinar will inform participants on the root causes of HABs and the threats they present to ecosystems and communities of Lake Erie. After outlining the nature and scope of the problem, the webinar speakers will then discuss specific strategies for citizens and leaders to tackle HABs through the framework of the public trust doctrine. Participants will leave the webinar informed on nutrient pollution, HABs, and one of the most promising new strategies to eliminate them.

Registration: Space is limited to the first 100 registrants. Click here to register.

This is the third webinar of Council of Canadians’ Protect the Great Lakes Forever Virtual Townhalls.

Be sure to invite your friends, colleagues and family to this event!

Learn more about Council of Canadians’ Protect the Great Lakes Town Halls.

 # # #

FLOW is the Great Lakes Basin’s only public trust policy and education 501(c)(3) nonprofit organization. Our mission is to advance public trust solutions to save the Great Lakes. 

Joe Sax, Legal Giant and Visionary, Leaves the Gift of the Public Trust Doctrine

For Professor Joseph Sax

  • “Of all the concepts known to America law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive approach to resource management problems.” – Joe Sax, The Public Trust Doctrine, 66 Mich. L. Rev. 473, 474 (1970).
  • “Any person…  may maintain an action in the circuit for the protection of the air, water, natural resources and the public trust therein from pollution, impairment, or destruction.” – Joe Sax, Codified as The Michigan Environmental Protection Act of 1970.
  • “To those for whom wilderness values… has never been of more than peripheral importance,  this book asks principally for tolerance…”… to the preservationists themselves, in whose ranks I include myself, the message is that the [public] parks are not self-justifying. Your vision is not necessarily one that will commend itself to the majority.  It rests on a set of moral and aesthetic attitudes whose force is not strengthened either by contemptuous disdain … or taking refuge in claims of ecological necessity. Tolerance is required on all sides, along with a certain modesty.” – Joe Sax, Mountains Without Handrails, pp. 108-109 (University of Michigan Press, 1980).
Professor Joe Sax (1936-2014)

Professor Joe Sax (1936-2014)

Joe Sax, father of environmental law citizen suits and the public trust doctrine and Michigan and California professor, passed away last week, leaving a legacy far beyond his 78 years. His wife Ellie Gettes Sax passed away this past December. His sense of justice, family, art, knowledge, wisdom, masterful writing, and passion will be sorely missed by his family, friends, colleagues, and the many students and fans who have had him in class or read his law review articles, essays and books.

But thank you to Joe for the legacy he left—writings that are so sound in research and reason and so visionary in real world application. Like the public trust doctrine from ancient times that he resurrected in the famous 1970 Michigan Law Review, parts of which are quoted above, his body of work will undoubtedly continue to teach students and lawyers how to protect water and the planet for generations to come.

My thoughts go to Joe Sax, his family, and colleagues, and the thousands of law students, lawyers and judges who admire or have been inspired (or jolted) by his work. He will be sorely missed by his family and friends close to him and those who knew him. Fortunately, the beacon of his work burns brightly, as it has done and will do.

I remember the first time I met him as Professor Sax when he spoke at the Michigan State University Union in 1972. I actually didn’t “meet” him that day, but heard him talk to the assembled group about a law (the Michigan Environmental Protection Act) that he had drafted and was signed into law by Governor Bill Milliken.

He spoke mostly about the idea behind it: that the water, watershed, and people who live or work there are all connected as a single natural system, and are collectively protected by this new law and by the public trust. How? Through rights, responsibility, and access (what lawyers refer to as “standing”) to courts to enforce these rights and duties and protect this natural system and trust from harm.

As a recent law graduate then working at the Michigan Supreme Court, I had seen a notice of his lecture posted on the Union bulletin board and wanted to know what it was about. I left the Union that day with one thing on my mind (like so many others, I’m sure): this was I wanted to do as a lawyer.

Little did I know that I’d be so fortunate, and Joe Sax so kind, to study under his personal supervision when I attended Michigan for my Masters in law. That he took me on was a huge gift, one I’ve wanted to return, like so many of us who have been inspired by him, in the day-to-day work that we do by applying and implementing the very values and principles he strived for and espoused so eloquently.

I treasure his trip to Traverse City a few years ago to deliver a keynote on water. I picked him on at the airport and he generously agreed to meet for dinner with Joan and Will Wolfe—friends of his and the citizen duo behind passage of the environmental citizen suit law in Michigan—and all of the lawyers, mostly young, at our firm. Even today they still talk about that evening.

Then there was his keynote address at the State Bar of Michigan Environmental Law Section’s 25th anniversary a few years back, when Joe traveled to East Lansing for another lecture. This time the focus was on accepting the reality of climate change and, as lawyers, beginning to envision pragmatic ways to prepare for the rising oceans and disappearance of habitat in flooded estuaries, wetlands and lowlands.

He wondered aloud how we as lawyers might start thinking about setting aside land use zones now for the new wetlands and sensitive habitats or spawning grounds that will be needed in the future as water levels rise along the shores of the oceans?  Or,  how should we as a society start to address the dropping water levels of the Great Lakes, preparing for the need of new wetlands in exposed lake or river beds?  Figuring out who will own these new exposed lakebeds if they become permanently dry upland property? Will these be considered private riparian or public trust lands or both?

I think about friends who had him as a professor or mentor, at Michigan and later at Berkeley, and can only imagine the stories they have, I’m sure quite similar to my own. Joe Sax wrote and taught eloquently—an artist within the linear framework of law-but he was also a tremendous influence and affected many, many people, in so many good ways.

He left a legacy of accomplishments, although that is not the way he would view them, given his respect, and I think love, for soundly researched, firmly reasoned, and artfully structured and worded writings on law, justice, the arts and culture. Rather, he left a legacy of contributions, giant contributions.  While not close to a list of his body of work, at the end of this post is a list of a few works that cannot go unmentioned.

So many other organizations, leaders, professors, and friends of Professor Sax could say or tell far more than I ever could. But we at FLOW are deeply grateful for Joe Sax and his life, and in mission we hope to fulfill in some pragmatic measured ways what he envisioned.

For in what is still the early morning of the 21st century, the world faces seemingly insurmountable threats, some that point toward global collapse if we continue on the selfish and material path that we now live as civilizations and economies. We have a choice between living in a world of top-heavy wealth of a few that pushes people and the earth’s commons to the point of collapse, or reasserting the fact that “no man (sic) is an island,” that we live in a commons and are tied by those commons to survive and live.

FLOW’s hope is to apply what Joe Sax’s envisioned for the public trust doctrine as an umbrella or benchmark that protects those parts of our world that are the commons, particularly the water that runs through all.  FLOW’s articulation and application of this vision is described in a recently published article:

A possible answer is the immediate adoption of a new narrative, with principles grounded in science, values, and policy, that view the systemic threats we face as part of the single connected hydrological whole, a commons governed by public trust principles. The public trust is necessary to solve these threats that directly impact traditional public trust resources like the Great Lakes and its tributary waters.  The most obvious whole is not a construct of the mind, but the one in which we live – the hydrosphere, basin, watershed, through which water flows, evaporates, transpires, is used, transferred, and is discharged in a continuous cycle.  Every arc of the water cycle flows through and effects and is affected by everything else, reminiscent of what Jacques Cousteau once said, “We forget that the water cycle and the life cycle are one.” All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine.

Professor Joe Sax, we re-dedicate our work to you and what you stand for.

Memorial Services for Joe and his family will be held Sunday, March 23, 2014, Congregation Emanu-El, San Francisco.

[Please note that the editorializing in the parenthesis in the list below are wholly mine and should not be attributed to Professor Sax. Better to read these selections yourself]:

  • Defending the Environment – A Strategy for Citizen Action (1972) (a ground-breaking book that called for legal standing and access to the courts for citizens and urged responsibility and duty for government and everyone to protect the natural bounty of this world).
  • The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention  (a seminal landmark article that compiled and offered the public trust doctrines as a broad and deep approach to address the systemic threats to our most special places, parks, and common waters).
  • The Michigan Environmental Protection Act of 1970 (the first model and adopted citizen suit law to protect the air, water, natural resources and the public trust in those natural features and our common air and water).
  • Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971) ( some property, whether public or private, are so inextricably related to public health and welfare that protection of such lands and features preserves what is public without taking private property rights, where none can be said to have been truly expected in the first place).
  • The Michigan Environmental Protection Act of 1970: A Progress Report, 70 Mich L. Rev. 1003 (1972) (Joe Sax and Roger Connors published a thorough monitoring of cases and decisions under the new MEPA; Roger Connor was the first of several Professor Sax “protégés” who worked under him to help interpret and understand the facts, data, and law evolving under what was later labeled by the Michigan Supreme Court “the common law of environmental quality”).
  • Environmental Citizen Suits: Three Years Experience under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1 (1974) (Joe DiMento published the second “report” on the MEPA with Joe Sax, this time fleshing out some of the political, statistical, and jurisprudential implications).
  • Michigan Environmental Protection Act in its Sixth Year, 53 J. Urban. L. 589 (1976, University of Detroit Law School) (Jeff published the next report, this time shaping the growing number of trial and appellate court decisions, upholding the constitutionality of the act, demanding high level of judicial review, and imposing duties on government to consider impacts and prevent and minimize environmental degradation).
  • Helpless Giants: National Parks and the Regulation of Private Land, pp. 108-109, 75 Mich L. Rev. 239 (1976) (Joe Sax had a passion for wilderness, particularly protecting the values of our national park system, and considered the authority of the National Park Service to protect those values from activities that impacted them adjacent or near the parks).
  • Mountains Without Handrails: Reflections on the National Parks (University of Michigan Press, 1980) (Joe Sax’s reasoned plea for preserving the values of wilderness and the National Parks through deep personal engagement in the parks to appreciate the “genius” of what energized the creation of the park in the first place).
  • William O. Douglas Award (for extraordinary legal achievement, Sierra Club, 1984).
  • Distinguished Water Attorney Award (Water Education Foundation, 2004).
  • The Limits of Private Rights in Public Waters, 19 Env’t’l Law J. 473 (1989). (Professor Sax pointed out that for 2,000 years water has been understood as public in the sense that it is within the crown or sovereign people, represented by government; and at the very least water has never been owned by anyone, and as such there is no right and should be no expectation of private ownership of water, merely use consistent with the larger public values represented by these common waters).
  • Playing Darts with Rembrandt (University of Michigan Press, 1999) (Here, Joe Sax goes beyond the boundaries of traditional thought, and in riveting short-story like tales of battles, scars and defacing or covering up great works of art and culture makes the case for limitations on the right to destroy or impair art, that is, unless you are the artist her/himself).
  • The Blue Planet Prize (Glass Foundation, 2007) (awarded to Joe Sax for his pioneering work and invention of the environmental citizen suit to democratize a government too much influenced by its own ends or the ends of those who influence it and protect to a degree the ecosystem on whom all depend).

I could go on, but the above selected titles are only illustrative of how deep his passion and love for beauty and the natural world and his sense of justice ran (and, through his legacy, will run). And these writings reveal how his modest but irrefutable strong force of reason and values overwhelmed (and will continue to overwhelm) or piqued his audience.

Desmog: Concerns Mount About 61-Year Old Enbridge Pipeline in the Great Lakes

Click here to read the article on Desmog

By Derek Leahy, Desmog Canada

March 6, 2014

Of the 30 million Canadians and Americans depending on the Great Lakes for water very few would guess there is an oil pipeline sitting in their drinking water supply. It is anyone’s guess if this 61-year old Enbridge pipeline, known as Line 5, is pumping bitumen from the Alberta oilsands through the Great Lakes.

U.S. pipeline regulations do not require Enbridge to make public if Line 5 is transporting bitumen. Enbridge says the pipeline carries light crude oil mainly from the Bakken shale in North Dakota. The pipeline begins in Superior, Wis., and cuts through Straits of Mackinac, where Lake Huron and Lake Michigan meet, in the U.S. to get to its end destination of Sarnia, Ont.

“(U.S.) Pipelines in general are considered a national security risk,” says Beth Wallace, a regional coordinator with the National Wildlife Federation based in Ann Arbor, Mich.

“So PHMSA is not willing to provide records of Line 5 that provide detailed information about the location, integrity or product transported,” Wallace told DeSmog Canada. The Pipeline and Hazardous Materials Safety Administration (PHSMA) oversees pipelines for the U.S. Department of Transportation.

The National Wildlife Federation conducted an underwater dive last year to investigate and film the condition of Line 5. The federation discovered some of the pipeline’s steel supports meant to keep Line 5 secured to the bottum of the Straits had broken. Other sections of the pipeline were covered with debris.

Line 5 To Transport Bitumen Soon, If Not Already

The National Wildlife Federation believes if Line 5 is not transporting bitumen now, it will be in the near future.

“If Enbridge is granted authority to increase capacity on the Alberta Clipper pipeline, there will be an incredible increase in the amount of heavy bitumen pushed into Superior, Wisconsin, where Line 5 begins,” Wallace says.

A U.S. decision on Enbridge’s Alberta Clipper is expected next year. Earlier this week, Enbridge announced its Line 3 pipeline will be replaced by a new pipeline with expanded capacity. Both pipelines ship oil and bitumen from Alberta to Superior, Wis.

Concerns of a Bitumen Spill in the Great Lakes

Residents of Michigan experienced the worst bitumen spill in U.S. history when Enbridge’s Line 6B pipeline ruptured, spilling more than three million liters of bitumen and oil into Michigan’s Kalamazoo River. Bitumen — the tar-like form of petroleum in oilsands —sinks in water, unlike conventional oil. Enbridge has dredged the Kalamazoo multiple times in an attempt to remove the bitumen from the river. The cleanup is still going on four years after the spill.

The environmental damage a bitumen spill can cause plus Enbridge’s spill record — estimated at eight hundred pipeline spills between 1999 and 2010 — has Canadians worried about a Line 5 rupture as well. Georgian Bay, Ontario’s most vibrant bay, makes up the eastern part of Lake Huron.

“We are very concerned about Line 5,” says Therese Trainor of the Manitoulin Area Stewardship Area Council in Manitoulin Island, Ont.

“Georgian Bay is one of the most unique ecosystems in the world. We have flora and fauna here you cannot find anywhere else. We could lose this in an oil spill,” Trainor told DeSmog Canada.

There is no land between Lake Huron and Lake Michigan to stop the Straits of Mackinac’sswift water currents from spreading an oil spill into either lake. The National Wildlife Federation estimates in its Sunken Hazard report that if Line 5 has a large oil spill it could reach Georgian Bay.

Condtions in Straits of Mackinac Make it a Terrible Place For A Oil Spill

“This (Straits of Mackinac) is a terrible place for a rupture,” says pipeline safety expert Richard Kuprewicz.

Kuprewicz, a pipeline safety expert with 40 years of experience in the energy sector, says pipeline ruptures are difficult enough to cleanup, but conditions in the Straits of Mackinac would make things much worse. Line 5 at its deepest is 90 metres underwater and the straits freeze over in the winter.

What emergency responders could do about a burst pipeline nearly 100 metres below in the either stormy or frozen straits is questionable.

“Pardon the expression, but cleaning up and containing a Line 5 rupture in the straits would be a crap shoot,” says Wallace of the National Wildlife Federation.

There are no reports of Line 5 rupturing in the Straits of Mackinac. The 76-centimeter (30-inch) wide pipeline splits into two smaller 50-centimeter (20-inch) wide pipelines with thicker pipe walls (2.5 cm) in the straits. An external coal-tar coating minimizes corrosion on the pipeline. Coal-tar coating has had “mixed success” in the past protecting pipelines, according to Kuprewicz.

“Just because a pipeline hasn’t leaked or ruptured in the past doesn’t mean it won’t in the future. The past does not predict the future,” Kuprewicz, president of research group Accufacts Inc.,  told DeSmog Canada.

Line 5 has ruptured on land, notably in 1999 at Crystal Falls, Mich., spilling 850,000 litres of oil and natural gas liquids.

Michigan Needs To Protect the Great Lakes Commons

Liz Kirkwood, executive director of the Michigan-based Great Lakes advocacy group FLOW (For Love of Water), argues Enbridge should be required to secure permission from the state of Michigan under the Great Lakes Submerged Lands Act before the pipeline company can transport bitumen through the Straits of Mackinac.

“As a trustee of the Great Lakes, the state of Michigan is obligated to assess possible impairments to the public’s use of the Great Lakes and protect the lakes for the enjoyment of present and future generations,” Kirkwood says.

Michigan’s Great Lakes Submerged Lands Act requires companies to obtain state permits to build or modify structures in the Great Lakes. Line 5 was built in 1953. The Act came into effect in 1955.

Circle of Blue: Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Click here to read the article on circleofblue.org

Joint U.S.-Canada Agency Calls for Big Phosphorus Reductions in Lake Erie

Curbing harmful algal blooms and oxygen-deprived dead zones in the Great Lakes requires pollution to be drastically reduced.

By Codi Kozacek

February 28, 2014
Current phosphorus targets for Lake Erie and its tributaries are not enough to keep the lake from suffering toxic algal blooms and hypoxic dead zones that threaten public health and fisheries, according to a new report released by the International Joint Commission (IJC), a U.S.-Canada agency that oversees the Great Lakes and other transboundary waters.

The report proposes a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.

Just as significantly, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions that have been unattainable using conventional regulation. The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” the conviction held by societies, stretching back thousands of years, that a select group of resources — air, water, hunting grounds, rivers, oceans, lakes — are so vital that they are community assets to be collectively protected and shared.

Once a resource attains such high value, securing its vitality emerges as a basic human right, like liberty. The Joint Commission views the Public Trust Doctrine as a necessary legal tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes. The U.S. Clean Water Act, in fact, largely exempts farms, the most important source of phosphorous, from regulations that would limit phosphorous pollution. By declaring the Great Lakes as a “commons,” the newly-applied doctrine could give governments fresh authority to protect waters from any source that would cause harm.

“Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment,” said FLOW, an environmental organization in Traverse City, Michigan that has played a crucial role in promoting use of the Public Trust Doctrine to clean up the Great Lakes. “The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.”

Jim Olson, attorney and founder of FLOW who has been practicing environmental and water law for 40 years, said the IJC report is a significant acknowledgement of the role the public trust doctrine can play in protecting the Great Lakes.

“The IJC is being sound and thorough in science, pragmatic in the necessity for a new approach, and profoundly visionary by moving us to the public trust principles as a compliment to the existing legal framework,” he told Circle of Blue. “So if that framework is failing, because parties can’t agree or states can’t ask for a phosphorus limit, the citizens and the IJC can step in an demand it be done because of this legal obligation on the part of the states and provinces.”

Phosphorous is clearly harming the Great Lakes. Lake Erie experienced its largest algal bloom ever in the summer of 2011. Toxic blooms in the fall of 2013 shut down an Ohio drinking water plant for the first time in state history. Algal blooms also are inundating the shores of Lake Michigan near Green Bay in Wisconsin, and along the shores of Sleeping Bear Dunes National Lakeshore in northern Michigan, a region that ABC TV’s Good Morning America declared in 2011 to be “the most beautiful place in America.”

Phosphorus is the driving factor behind both the algal blooms and the hypoxic dead zone, say scientists. Excessive amounts of the nutrient encourage algal growth. When large blooms die and decompose, they suck up oxygen from the surrounding water. This creates dead zones, where oxygen content is so low that fish and other organisms can’t survive.

Both problems were especially severe in Lake Erie in the 1960s, leading the U.S. and Canada to set targets for the amount of phosphorus entering the lake. The current target amount is 11,000 metric tons annually for the whole lake. Annual phosphorus loadings have mostly been below this target since the mid-1980s. Nonetheless, the resurgence of algal blooms and dead zones has prompted calls for a reassessment of phosphorus targets.

To achieve the necessary reductions, the IJC report gives specific recommendations to state and federal governments in both countries. The recommendations focus on reducing phosphorus from the agricultural industry—which has been largely overlooked by laws governing water pollution—and on reducing dissolved reactive phosphorus, a type of phosphorus that is more available to algae. The recommendations include:

  • Listing Lake Erie as an impaired waterway under the United States’ 1974 Clean Water Act. The designation would allow the U.S. Environmental Protection Agency and state regulatory agencies to set a Total Daily Maximum Load for the lake and its tributaries with legal requirements for nutrient reductions.
  • Establishing Lake Erie within a public trust framework in both the United States and Canada to take advantage of common law protections of the lake as a resource for fishing, shipping and water.
  • Expanding incentive-based programs encouraging farmers to adopt practices that reduce phosphorus, and create restrictions on when and how fertilizer is applied to farm fields.
  • Banning phosphorus fertilizers for lawn care.
  • Increasing the amount of green infrastructure in cities.
  • Expanding monitoring programs for water quality in the Lake Erie basin.

The report will be transmitted to governments in the U.S. and Canada, but the IJC does not have the authority to take further action.

“The report shows the urgent need for the governments to take action,” Lyman Welch, director of the water quality program for the Chicago-based Alliance for the Great Lakes, told Circle of Blue. “Voluntary measures have not been able to address this problem today.”

In the 1970s the Clean Water Act helped address the nutrient load from point sources, and was largely successful in reducing the nutrients flowing into Lake Erie. But non-point runoff, the pollution that flows off the land, is not addressed very well by the Clean Water Act requirements, he added.

“The report gives several steps that can be taken by state and fed governments in the United States and Canada to address agricultural pollution in Lake Erie. We hope that the U.S. and Canada act on these recommendations by the IJC expeditiously to address a serious problem.”

Public Trust Doctrine Policy Framework Encouraged in Final LEEP Report

Click here to view and download the full press release as a PDF

February 27, 2014

FOR IMMEDIATE RELEASE

Contact: Liz Kirkwood, Executive Director
liz@flowforwater.org or 231-944-1568

Public Trust Doctrine Policy Framework Encouraged in Final LEEP Report

FLOW Commends International Joint Commission as “Forward-Thinking”

TRAVERSE CITY, MI – FLOW lauds the International Joint Commission (IJC) for including public trust standards into its recommendations for solving Lake Erie’s harmful algal blooms in its 2014 final Lake Erie Ecosystem Priority (LEEP) report. FLOW’s comments to the IJC on its draft LEEP report (2013) urged state governments to apply public trust standards as a key strategy for restoring and protecting Lake Erie’s waters. FLOW congratulates the IJC for their forward-thinking approach, one that includes the public trust doctrine as a mechanism that extends beyond traditional regulations to eliminate the nutrient runoff loads causing of algal blooms.

Harmful algal blooms (HABs) – an issue once thought to be solved when legislation regulated public wastewater treatment facilities and outlawed phosphorus from soaps and detergents in the 1970s – created a “dead zone” the size of Rhode Island and Delaware combined on Lake Erie in 2011. HABs emerge perennially in the summer months, and excrete toxins that pose hazards to swimmers, fish and fishers, boaters, tourists, and property owners. Under the premise that HABs interfere with these protected public water uses and impair water quality, state- and province-level officials can invoke the public trust and use it as a policy tool to achieve more aggressive reductions in phosphorus (and related nutrient) run-off from agriculture and municipal sewer operations in order to reduce and prevent future algal blooms.

In the final LEEP report, the IJC encourages states and provinces in the Great Lakes Basin to apply the public trust as a framework for future policy decisions in order to prevent and minimize harmful algal blooms (HABs) in Lake Erie. From the final LEEP report:

“The governments of Michigan, New York, Ohio, Pennsylvania and Ontario should apply a public trust framework consisting of a set of important common law legal principles shared by both countries, as an added measure of protection for Lake Erie water quality; government should apply this framework as an added decision-making tool in policies, permitting and other proceedings…”

Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment. The effects of HABs – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust. Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.

“We applaud the IJC for its foresight and guidance on one of the greatest threats to the Great Lakes, and urge the states to immediately implement and evaluation actions necessary to address nutrient runoff problems,” says FLOW Founder Jim Olson. “The IJC’s sense of urgency and call for cooperation sets the tone for immediate action in reducing reactive phosphorus loading, aimed at the “hot spots” first,” he says.

“The call for a public trust framework recognizes a benchmark adopted by the courts of all eight Great Lakes states and Ontario,” he explains. “This benchmark means governments must act. They have an affirmative duty,” he says.

“It also means that all private interests involved with phosphorus management practices, farming, and the non profit organization sector must work together, because we share this common water held in public trust. Finally, it means that if the states, province, and those engaged activities that fall short of best practices or fail to reduce phosphorus by setting a limit for Lake Erie, then the citizens as legal beneficiaries may seek recourse to make sure that the continuing nuisance and interference with private and public uses of high value are protected,” he says.

FLOW has worked on the issue of public trust as it relates to HABs for several years. In 2011, Olson and Council of Canadians National Chairperson Maude Barlow authored and presented a report to the IJC on the application of public trust principles to the Great Lakes. In 2013, FLOW submitted comments to the IJC on their 2013 draft LEEP report that enumerated how the public trust framework can complement present regulations and cooperative efforts to prevent nutrient run-off from creating HABs in Lake Erie and elsewhere.

HABs are becoming an increasingly common problem in other Great Lakes regions including Green Bay, Saginaw Bay, and along some parts of the eastern shoreline of Lake Michigan. “Utilizing the public trust framework as a means for solving HABs in Lake Erie is just the first step,” says FLOW’s executive director, Liz Kirkwood. “Once the Lake Erie Basin states demonstrate the application and effectiveness of the public trust in solving HABs, it will be much easier for the rest of the Great Lakes Basin states to follow suit. This problem is not limited to Lake Erie.”

The IJC has taken a significant step to lead the governments and citizens and interested parties to a goal of reduced phosphorus loading of Lake Erie, to a point where the reactive devastating harm and public nuisance can be abated.

The Pipeline in the Straits: Learning About Line 5 with Enbridge in St. Ignace

By FLOW intern Jonathan Aylward. Jonathan has been with FLOW since January 2014 and also works on food-related projects throughout the Grand Traverse region.

There is an oil pipeline running through the Great Lakes underneath the Mackinac Bridge. The pipeline, called Line 5, is owned and operated by Enbridge, a Canadian energy corporation. Enbridge has pumped crude oil through the less than one-inch-thick pipeline for sixty-one years along the bottom of the Straits of Mackinac. Built under Dwight Eisenhower’s administration at a time before modern pipeline regulations, Enbridge increased the output of Line 5 by 50,000 gallons per day in 2013. While Line 5’s capacity has increased, neither regulatory scrutiny nor corporate transparency have followed suit. The Great Lakes, which contain 84% of North America’s and 20% of the planet’s surface freshwater, are at a greater risk than ever.

Line 5 is part of a vast network of Enbridge pipelines that transports crude oil and natural gas liquids originating in Western Canada (mainly the Athabasca tar sands) and North Dakota around the country. Line 5 is the section that passes from Superior, Wisconsin through the Upper and Lower Peninsulas of Michigan into Sarnia, Ontario.

Enbridge put on a public presentation in St. Ignace, MI, on February 5, 2014 in response to mounting public concern spurred in part by an alarming report released in 2012 and an unsettling video released last year, both by the National Wildlife Federation (NWF). Some of the most illuminating segments can be heard and read below.

First, a quick reminder of why Michiganders should be especially wary of Enbridge’s Line 5 and its 1,900 miles of pipeline surrounding the Great Lakes.

Enbridge’s Dilbit Disaster in Kalamazoo, MI

Bitumen is the type of oil that is extracted from the Athabasca tar sands, a region of Alberta the size of New York state. It’s not normal liquid oil; bitumen is more solid than it is liquid, and it has to be strip mined or boiled to be released from the ground. It is the heaviest form of petroleum in the world, which makes it especially hazardous to transport because in the event of a spill it can sink. From extraction to refinement, it has the largest carbon footprint of any type of petroleum.

Since 1999, Enbridge has been responsible for 983 spills, the largest of which happened in Marshall, MI (near Kalamazoo, MI) in 2010. That spill, on Line 6b, was the largest on-land oil spill in US history.  About one million gallons of diluted bitumen (dilbit) leaked into Talmadge Creek, a tributary of the Kalamazoo River. The pipeline was forty years old, twenty years younger than Line 5. Enbridge has responded with negligence ever since the initial rupture:

  • The Line 6b leaked for 17 hours, and during the spill operators actually increased the pressure to release what was thought to be a blockage.
  • Enbridge monitors weren’t the ones to discover the spill; it was a local utility man that reported it to local authorities.
  • 180,000 gallons of bitumen still sits on the bottom of the Kalamazoo River three and a half years later.

The Kalamazoo spill has forced Michiganders to wake up to the interrelated threats to public health, the economy, and our environment that Line 5 poses. Pressing questions about the age and condition of the pipeline and the type of crude being pumped quickly surface.

  • After Kalamazoo, why should the public continue to entrust Enbridge as stewards of the Great Lakes?
  • Why is Enbridge using a sixty year old pipeline if their forty year old pipeline ruptured in Kalamazoo?
  • Which type(s) of tar sands oil product are shipped through Line 5?
  • Why is there a pipeline going through the Great Lakes at all?
  • Under what conditions was the pipeline approved and why is it still there?

Enbridge Comes to St. Ignace

Enbridge sent a public relations advisor and two of their engineers along with their cleanup contractor to St. Ignace to present “their side of the story” at the Mackinac County Planning Commision meeting. The room was packed with around 175 attendees. No representatives from NWF or other concerned organizations were present on the Q&A panel.

The environment was carefully controlled. Two Enbridge employees in the front row acted as a whispering counsel to the panel throughout the event. Instead of an open floor question and answer format, Enbridge opted to have the public write their questions down. Then, through an unexplained process, Enbridge proceeded to answer certain question cards. The mood shifted from respectful concern to outright frustration over the course of the hour and half long event. Many questions were left unanswered, and even more questions arose.

The Potential Disaster

1. Enbridge says 5,500 barrels (231,000 gallons) of light crude oil could leak into the Great Lakes.

Listen:

[soundcloud id=’136703886′ color=’#091571′]

Watch:

In the audio build-up to the video clip, the public relations advisor initially dismisses a question about the company’s assessment on a worst-case discharge. A minute passes (which has been edited out), and the citizen that wrote the question stands up and demands that they revisit his question. In the video, after more audience questioning, the Enbridge Engineer gives the number off the top of his head.

2. “Extremely conservative” estimate says 25 square miles could be covered.

[soundcloud id=’134804334′ color=’#091571′]

3. In the winter, “Mother Nature will dictate.”

[soundcloud id=’134804343′ color=’#091571′]

Winter ice is not the only force of nature present at Line 5’s Straits crossing that would enhance the complexity and difficulty of a clean-up. Here is an excerpt from the NWF report “Sunken Hazard” about the powerful currents in the Straits:

“The Straits of Mackinac in northern Michigan is a unique area of the Great Lakes, a four-mile-wide channel that funnels colossal amounts of water between Lakes Michigan and Huron. Powerful storm-driven currents that cause water to oscillate back and forth between the two lakes can move water through the Straits at a rate of three feet or more per second. At times, the volume of water flowing beneath the Mackinac Bridge is 50 times greater than the average flow of the St. Clair River, one of the largest rivers in the Great Lakes basin. Those currents also make the Straits one of the worst places in the Great Lakes for an oil spill. There are few other places in the lakes where an oil spill could spread so quickly.”

What’s Inside the Pipeline?

4. Question: Are there any plans to pipe tar sands through this pipeline?
Answer: “There are no plans to pump what’s known as heavy crude, and sometimes called tar sands, through that pipeline.”

[soundcloud id=’134804329′ color=’#091571′]

This was the first question selected by Enbridge in the Q&A segment. Enbridge openly reports on their website that they are piping several types of tar sands oil through Line 5, mainly the product called synthetic crude, and not the heavier dilbit. Bitumen from the Athabasca tar sands becomes transportable in two ways: it’s either diluted with other chemicals to create dilbit, or it is partially refined at an upgrader facility in Alberta and mixed with chemicals to create a lighter product called synthetic crude. This document on Enbridge’s website reports “Light Synthetic” as one of four groups of products piped on Line 5, and this other Enbridge document lists the specific products that are commonly shipped through Line 5. All of the Light Synthetic products are derived from tar sands bitumen, and some of the “Light & High Sour” products are as well.

5. Question: What procedure does Enbridge have to follow if they change their mind and want to start shipping tar sands?
Answer: “It’s complicated, let me come back to that.” She didn’t.

[soundcloud id=’134804330′ color=’#091571′]

Again, Enbridge is already shipping a variety of tar sands crude products through Line 5. The Pipeline and Hazardous Materials Safety Administration (PHMSA), the federal pipeline regulatory agency, treats all crude oil the same despite the fact that spill consequences vary by type and product. Enbridge can pump anything that classifies as crude oil or natural gas liquids through their pipelines, from conventional light crude oil to dilbit. On page three of this document from Enbridge’s website, it says that even if a product is not marked as permissible or existing for a specific pipeline (e.g. dilbit in Line 5), transporting it would simply “require prior authorization from Enbridge”. It appears that pipeline companies do not even have to document changes in batches or the chemical composition of its current products.

6. Line 5 currently pipes low density crude oil and natural gas liquids in 10,000 barrel batches.

[soundcloud id=’134804328′ color=’#091571′]

540,000 barrels pass through Line 5 per day.

7. Most of the product comes from the Bakken Shale in North Dakota.

[soundcloud id=’136693110′ color=’#091571′]

Over half of the products listed on Enbridge’s website that pass through Line 5 can be traced to the Athabasca tar sands’ region. Here is the link again.

Kalamazoo River Spill

8. All oil floats, but some oil floats better than other oil.

[soundcloud id=’134804332′ color=’#091571′]

The 180,000 gallons of bitumen on the bottom of the Kalamazoo River demonstrate otherwise.

9. All questions that mention the Kalamazoo River spill were rejected.

[soundcloud id=’134804331′ color=’#091571′]

Enbridge says Lines 5 and 6b are ”two different lines that do different things”, so all questions that mention the spill are rejected.

The Condition of Line 5

10. Enbridge inspects for dents, cracks, and wall thickness. Line 5 under the Straits has no dents and good wall thickness.

[soundcloud id=’134804341′ color=’#091571′]

11. In 2012, Enbridge documented hundreds of “abnormalities or cracked features” on Line 5.
[soundcloud id=’134804342′ color=’#091571′]

12. “They don’t build it like this anymore.”

[soundcloud id=’134804335′ color=’#091571′]

13. “The seamless pipeline under the straits is in fact seamless.”

[soundcloud id=’134804336′ color=’#091571′]

At this point in the event, the word seamless had been used a lot.

14. The pipeline is welded every 40 feet. The seamlessness of the pipeline is referring to the side-seam.

[soundcloud id=’134804338′ color=’#091571′]

For an hour and a half, the audience pondered how it was possible to make, transport, and install a 5-mile long seamless pipeline. The question was finally answered near the end of the meeting. An Enbridge engineer clarified that the each pipeline piece is welded to the next section every 40 feet, and that the “seamless pipeline” is referring to the lack of a side-seam.

15. “There were no regulations that had to be met when that line was built,” but Enbridge looked it over in 2004 and concluded that Line 5 to par.

[soundcloud id=’134804340′ color=’#091571′]

16. People got angry that Enbridge didn’t answer all their questions at a public meeting about Line 5.

[soundcloud id=’134804344′ color=’#091571′]

For audio and video transcripts, click here.

TRANSCRIPTS: The Pipeline in the Straits: Learning About Line 5 with Enbridge in St. Ignace

Want more? Here are the transcripts of the clips from the February 5 Enbridge meeting with Mackinac County officials and the public regarding the expansion of the Line 5 oil pipeline that is, in part, submerged underwater at the Straits of Mackinac in the Great Lakes.

(RUSH TRANSCRIPT AND STATEMENTS SIC)

1. Enbridge says 5,500 barrels (231,000 gallons) of light crude oil could leak into the Great Lakes.

[soundcloud id=’136703886′ color=’#091571′]

One of our residents would like to know, if there is a, um, break, uh, leak, in that 3 minute period from a 20 inch line at 300 pounds per second, what are we looking at, how much oil or volume would be lost to the on site?
Um, you know, I’m going to be completely honest, we talked about how to address this question, and the bottom line is we can speculate all day on worst case scenarios, what I can tell you, and I’ve tried to show you are all of the different safety mechanisms we have in place to ensure that hopefully we don’t have any incidents, but if we do, we work with our Osrow, and the Coast Guard, and all these other places to ensure that we contain it as quickly as possible, and return it to, um, return it back to the state in which it was. And, there’s more questions, you know, related to , um, who is going to pay for it, and of course we do assume that responsibility, um. What materials do you have in the straits? We talked about that. We have stuff on both ends of the straits, with boom, and our people that live and work here. Um, this a an um, I found this kind of interesting: are you planning for the Madrid earthquake? I can tell you that, um, not necessarily Enbridge, nor osrow =, but i can tell you from my past life that the Madrid earthquake is practiced every year by the department of defense, so that’s a homeland security issue and they are dealing with it. (huh?–crowd.)
Simple math problem about the oil spill–crowd
Compensations to businesses would be the same to county and private residents.
Sorry, you didn’t exactly answer my question with quantity. And, surely you know how much is flowing through just like if i spill a 2 cup, uh pale of water i know how much spilled. so, if there was a breach, what would be the release, because you know the quantity right?
Blake: Well, ok, we’d call that a worst case discharge.
Repeat the question!
Jackie: the question is how much is oil is in the pipeline between the two places in which we can isolate it
After the two minute shutdown
After?
There’s 3 minutes before you totally shut down, you said that earlier. So let’s take the worst scenario of 3 minutes of oil flowing at 100%. Like you said, that’s a simple math problem.
Yeah, that’s a simple math problem. Ok, uh, it’s uh, like, without the automatic shutoff system, it was like 15000 barrels, and then when we installed the automatic shutoff system, that cut it down to like 5,500 barrels, but it’s at a pressure, like i showed you, the pressure is like say 150 psi, or less, and i imagine if those valves shut, it’s going to be less, because they wouldn’t shut unless it was less. And we’ve talked about this, so, we have to give them a figure, and it’s on volume, so the very worst case, and it’s very unlikely, is 5,500 barrels. But, you know, one thing that was interesting, some of our engineers were saying, that the water pressure at the bottom of the straits is almost that much, so. not like we are actually going to open and it up and find out what happens, but there’s a good chance that there’s gonna be water going in at one point and holding the oil in. and the oil wants to float up, and it goes down like this. So I really doubt that even close to even a percentage of that would even leak in a scenario.

2. “Extremely conservative” estimate says 25 square miles could be covered.

[soundcloud id=’134804334′ color=’#091571′]

So, the first one, given the shutdown response stated, what is the volume of discharge during the time frame stated? That was answered right? Ok, what is the surface area that would result? 5,500 barrels? I’m sorry, I don’t have this exact calculation ready for you, but if anybody needs it, but if anybody needs the exact number, uh, predictive number, we can talk about it, but it’s substantial, very substantial, a figure, and I’m probably very low estimating it, 25 square miles, to figure something like that.

3. In the winter, “Mother Nature will dictate.”

[soundcloud id=’134804343′ color=’#091571′]

Next question: May Day, May Day May Day, it’s January 21, 2014, -18, -40 below wind chill, ice is 4 feet htick, oil leak alarms start sounding at 3 locations under the Straits of Mackinac. What are you, Enbridge, and the US Coast Guard going to do about it?
How soon will you have the critical response personal on site, and time to stop the leak. We’ve talked a lot about winter operations, and it should be very clear to everyone that it is a much more difficult type of approach. Now, from a response perspective, we have two ways to access oil under the ice. If it’s thick enough, we can walk out and start drilling holes to get to it. So if this oil spill of one of these 3 leaks that is proposed here, occurs near shore, then we’re going to go out from shore and start doing that. How quick can that happen? First boots on the ground, our first partner companyy is here in St. Ignace, Mackinac Environmental, that provides some assessment, then we start rolling personnel in. And equipment in. As we saw in my slide, we have a 6 hour mainframe model, and a 12 hour time frame model. Now, we need to put a lot of boots on the ground to do that, and to give you an idea of what i would conceive of an operation like that, we’re talking about 100’s of people having to be mobilized in 6-12 hours, so we’re prepared in our planning standards to achieve those kinds of concepts, but to answer the question, in the winter, mother nature will dictate, we need those kinds of resources, and it will complicate it that way, that’s the reality of it.

4. Question: Are there any plans to pipe tar sands through this pipeline?
Answer: “There are no plans to pump what’s known as heavy crude, and sometimes called tar sands, through that pipeline.”

[soundcloud id=’134804329′ color=’#091571′]

Are there any plans to pipe tar sands through this pipeline? As I said earlier, um, Line 5 is a light crude, um, pipeline, there are no plans to, um, pump what’s know as heavy crudes, and sometimes called tar sands through that pipeline. There are no plans to pump, um, heavy crude through Line 5.

5. Question: What procedure does Enbridge have to follow if they change their mind and want to start shipping tar sands?
Answer: “It’s complicated, let me come back to that.” She didn’t.

[soundcloud id=’134804330′ color=’#091571′]

If you decide at some point to change what you…to pipe tar sands oil through the straits, what procedure do you have to follow? I’m going to come back to that one because..it’s complicated. Let me come back to that one.
There was a question that she was asked that she said she would defer. I’d like to hear the answer to that question. “She’s ended answering the questions” She deferred that question, she said she would answer it!

6. Line 5 currently pipes low density crude oil and natural gas liquids in 10,000 barrel batches.

[soundcloud id=’134804328′ color=’#091571′]

Blake Olson – Enbridge Engineer: “Mixtures of petroleum, does that flow through this pipe? Well, It’s light density crude oil and natural gas liquids, that’s what flows through the pipe. Uh, they’re batched in like 10,000 barrel batches, and they have different names by who produced them and from where they came, but they are basically the lighter density oil. Line 5 is designed for piping that type of fluid. If we were to switch to heavy crude, we would have to change a lot of things on the pipeline, including all the pumps and whatnot. That’s all, I guess, I can explain, petroleum dense…light density oil and natural gas liquids, which is raw propane and butane.”

7. Most of the product comes from the Bakken Shale in North Dakota.

[soundcloud id=’136693110′ color=’#091571′]

Where does that product come from? Our light crude comes mostly from the Bakken.

8. All oil floats, but some oil floats better than other oil.

[soundcloud id=’134804332′ color=’#091571′]

The question here was: Does all oil float? Well, all the oil has, you know, a density less than water, so it should float. Uh, The, uh, light crude oil has lower density than the heavier crude oil service, and this is the light oil, so, uh, it floats better on line 5 than, it, uh, maybe on the heavier oil lines. But it all floats.

9. All questions that mention the Kalamazoo River spill were rejected.

[soundcloud id=’134804331′ color=’#091571′]

There were a lot of questions here about Kalamazoo. Line 5 and line 6 are two different lines that do different things I’m not going to get into discussing Kalamazoo here today. We’ve learned a lot from it. “It’s still not cleaned up” We’re in the process of finishing that.

10. Enbridge inspects for dents, cracks, and wall thickness. Line 5 under the Straits has no dents and good wall thickness.

[soundcloud id=’134804341′ color=’#091571′]

The monitoring efforts and inline inspection: the inline inspection tools in our sophisticated electronic vehicles move inside the pipe along with the oil, they obtain detailed measurements in the pipeline condition, they’re look at, these are three of the different types: they look at corrosion or wall thickness of the pipe, that’s how they can tell that the pipe is still the same thickness. They also look for dents in the pipe. And they look for, uh, cracks in the pipe. And the, uh, data, at the end of last year, the new data shows that the wall thickness is still almost an inch thick, and it also shows that there’s no dents on any of the straits.

11. In 2012, Enbridge documented hundreds of “abnormalities or cracked features” on Line 5.

[soundcloud id=’134804342′ color=’#091571′]

Based on Enbridge 2012 documents, hundreds of abnormalities or cracked features have been documented on line 5, and these abnormalities, they say, are similar to 6b which ruptured and caused that largest inland heavy sands spill. And uh, so, what, specific measures is Enbridge taking to remediate these abnormalities on the pipeline through the straits? Well, that’s what I was talking about, that;s what we’re doing; we beefed up the whole division that works on those, and we keep, just, and then, of course the straits piping, we’re running the tools, and we’re not finding any indications. So, uh, it’s because, that’s the thickest pipe we have in our whole system in all of North America. They just over-designed the whole straits crossing, that special seamless pipe.

12. “They don’t build it like this anymore.”

[soundcloud id=’134804335′ color=’#091571′]

Hello, thank you for coming. Ok, Enbridge, uh, strives for a safe delivery of liquid petroleum, and transport. The seamless steel pipe is a very robust design, it’s, you, we really have to give credit to the engineers that designed it, it’s really built to last. It’s really one of those stories where “they don’t build it like this anymore”. The, uh, pipeline is nearly 1 inch thick of steel, the two 20-inch lines.

13. “The seamless pipeline under the straits is in fact seamless.”

[soundcloud id=’134804336′ color=’#091571′]

Um, there’s a question about seams, the pipeline, the seamless pipeline under the straits is in fact seamless.

14. The pipeline is welded every 40 feet. The seamlessness of the pipeline is referring to the side-seam.

[soundcloud id=’134804338′ color=’#091571′]

Ok, just a clarification probably: how is a pipeline 5 miles long created without any seams. And, as you can see on the pipeline, there’s a different process to make a seamless pipe than there is to make a regular piece of pipeline. A regular piece of pipeline you take a flat piece of metal, it get’s rolled and folded, it gets welded, kind of like your pantleg, you’ve got a seam going down your pant leg, and that’s the side seam. As far as that piece of pipe it’s more continuous, there’s a whole different process that produces a seamless pipe. Now, there are joints in the pipe, so to be clear on that, the pipe did come out in 40 foot sections, so they are welded every 40 feet along there, there’s a butt welded to a joint, but there’s not a seam going all the way down there.

15. “There were no regulations that had to be met when that line was built,” but Enbridge looked it over in 2004 and concluded that Line 5 to par.

[soundcloud id=’134804340′ color=’#091571′]

A question that is a 2 part one: if teh pipeline were to be installed today, how would it differ from the way it was designed originally? Would it be done differently to meet design requirements? For example would a double walled pipe be required?
Just a little history, I used to work for the Minnesota office of pipeline safety, so I was trained with PHMSA, and so I got a pretty good background on the requirements. This pipeline going across the straits was built before PHMSA existed, so there were no regulations that had to be met when that pipeline was built. Now that said, Enbridge went back in 2004, went back through all the orignial design calculations just to double check how it was built and if it was still built to an acceptable standard today, and it was far in excess of what PHMSA requires.

16. People got angry that Enbridge didn’t answer all their questions at a public meeting about Line 5.

[soundcloud id=’134804344′ color=’#091571′]

Um, we’ve exceeded the time that the commission has allowed us, we hope we’ve answered your questions. (Audience angry yelling) I realize that. I’m sorry, this is going to end, if you want to have your question answered after this session by Enbridge employees, uh…we could go on for hours but uh, this is what was sessioned…(audience yelling)