Author: FLOW Editor

A Day in the Life of Patagonia – a Corporation that Promotes the Common Good

Above: Jim Olson and his wife Judy Bosma pose with Patagonia environmental programs associate Alex Cangialose and environmental grants coordinator Tom Kaheli on the front steps of Patagonia’s headquarters.


Patagonia, the cutting-edge outdoor clothing company with a mission to serve the common good and the planet’s environment, started out as a climbing equipment company in 1973. Since then it has grown into the leading outdoor clothing company on the planet in no small part because of its renowned founder–climber, surfer, kayaking, fly-fishing business entrepreneur, and environmentalist Yvon Chouinard. He may not remember meeting me, but I remember meeting Mr. Chouinard when he spoke in Traverse City more than a decade ago at the request of the Michigan Land Use Institute (now Groundwork).

Writer and outdoor enthusiast Doug Stanton, who’d fished with Yvon in Argentina, called to ask if I could pick up Yvon and drive him to a planned dinner in Leelanau County. It was during the early stages of the citizens’ lawsuit to halt Nestlé’s proposed export of 210 million gallons of bottled water out of the Muskegon River watershed. He was vitally interested and concerned, and shared his own thoughts on the environment, notably (sensing the stress in my voice, I suppose) that if I ever need a mind-clearing retreat, spend some time in Iceland. I have never made it to Iceland, but I took his advice and created moments on the river where I live. Not long after, Michigan Citizens for Water Conservation – the citizen’s group leading the local fight against Nestlé, received a donation from Chouinard to cover some of the scientific expert expenses.

No wonder that Patagonia is known as an unconventional activist, environmentally minded company — a company that has integrated business with care for the planet and the common good. It was the first company to pioneer and push the clothing industry into organic cottons, other fabrics, and now a hemp-cloth line of products. More recently, Patagonia has fostered public lands protection, promoted the protection of Europe’s last wild rivers, supported the New Green Deal, and announced that it would donate the $10 million it received from the Trump corporate-tax cut for the good of the planet.

Patagonia has blessed our work at FLOW

Since 2013, FLOW and Patagonia have partnered to bring knowledge and power to citizens to stand up for the Great Lakes. It started with a telephone call to gauge Patagonia’s interest in protecting the Great Lakes from a catastrophic oil spill from the aging pipelines located in the open waters of the Straits of Mackinac. Good fortune connected FLOW’s Executive Director Liz Kirkwood with Paul Hendricks in the company’s environmental grant program office. With deep roots in Michigan, Paul immediately understood the global significance and risk, and he invited FLOW to submit our first grant on the Line 5 pipeline. That fall, Patagonia invited Liz to participate in their annual Tools for Grassroots Activists Conference, designed to activate and empower environmental leaders nationwide with lessons from cutting-edge communication and campaign firms, fund developers, writers, and storytellers. 

Patagonia’s support in the early years of the Line 5 campaign was truly vital to FLOW’s success and ability to work other partners in the Oil & Water Don’t Mix (O&WDM) campaign, comprised of several dozen environmental and tribal groups, and supported by more than 200 businesses, 70 communities, and thousands of citizens. FLOW produced three expert legal and technical reports that helped shape the statewide conversation about Line 5 and influenced the governor’s task force report and advisory board process.

In tandem with this work, FLOW elevated public awareness of Line 5 through extensive presentations and statewide and some national media coverage, which was still dominated in those days by the Keystone Pipeline controversy. Then in 2015, Paul Hendricks and fellow Michigander and filmmaker, Colin McCarthy, approached FLOW to help produce an outdoor adventure/action-inspired film on Line 5. With funding support from Patagonia, Founders Brewing Co., Cherry Republic, and Moosejaw, we created and released “Great Lakes, Bad Lines” in the spring of 2016. Viewership has reached over 103,000 people online, and thousands more at showings co-sponsored by FLOW and our partners in the O&WDM campaign. Patagonia’s 2016 Vote Our Planet campaign then provided a national platform for Great Lakes, Bad Lines and helped FLOW elevate awareness of the danger posed by Line 5 to the national level. The Patagonia Chicago Magnificent Mile store hosted film screenings to packed rooms, and the staff continued to educate their own teams and customers about Line 5 and its national importance. One sixth-grader was so inspired by this story of Line 5 in the film that she raised over $1,000 to support FLOW’s work. Then Patagonia designer Geoff Holstad, who served as art director for the film, shared his artistic gift with FLOW through a year-long Patagonia environmental internship, branding and launching other FLOW initiatives, most notably our Get Off the Bottle campaign.

Since 2015, Patagonia has allowed FLOW to use its Social Amplification platforms and other tools on specific actions related to Line 5. In 2017, Patagonia featured FLOW as a leading environmental grantee in the Patagonia Environmental + Social Initiatives(see page 94). In 2018, Patagonia launched its Action Works platform to connect expert volunteers with nonprofit organizations, and FLOW participated in a Chicago event featuring this work. In addition, Patagonia employee Kristin Nolet served her environmental internship with FLOW, focusing on increasing communications capacity and reach. Last summer, Patagonia co-sponsored FLOW’s Evening for the Great Lakes featuring Chris Thile, mandolin virtuoso and host of NPR’s Live From Here.

Breakfast at Patagonia

On a recent trip to see our family and grandchildren in Ventura, a quiet coastal city an hour north of Los Angeles, my wife Judy, grandson Jack, and I were invited to breakfast by Patagonia’s corporate grant director Alex Cangialose and associate Tom Kaheli. We met in the company’s cordial, sustainable, health-conscious, and café-styled cafeteria, located in the company’s modest complex of sun-yellow, stucco-and-brick buildings nestled under a canopy of trees on the north end of downtown.

We talked about FLOW’s work on Line 5 and the Great Lakes; the complex issues within the nexus of food, energy, and water, magnified by the effects from climate change; the company’s continual efforts to improve sustainability and its industry’s footprint. This included water conservation, non-toxic materials, reuse and recycling, and the company’s serious search to solve the problem of ubiquitous plastic fibers in water and the environment from materials like fleece. We also touched on the company’s defining approach in supporting the tying together of environmental and social justice activism with strong science, law and policy, and communications.

The morning flew by. After breakfast, Alex and Tom took us on a tour of the grounds, office complex, innovative materials research and development using recycled clothing and materials, and the on-site store of its enticing lines of clothing and products. My wife Judy, a small-child educator, was particularly interested in the pre-school facility and playground that delivers free day care and work-day visitation for parents who work at Patagonia.

Jim Olson, President and Founder

While we didn’t buy out the store, we left with gifts for the three newest grandchildren in the family – a two-year old, one-year old, and a newborn with a due date this month. But mostly, we went away with a good feeling and appreciation for Patagonia and its staff and employees. The most rewarding part about FLOW’s partnership with Patagonia is the deep personal relationships forged between Patagonia employees in Ventura, Chicago, Reno, and FLOW here in Traverse City and the Great Lakes region. We look forward to meaningful opportunities, engagement, and continued worked together to meet the challenges we face in promoting clean water and the common good in the coming decade.


With a New Agency Comes New Structure in Michigan

Once upon a time, state environmental agencies operated for decades under the same name, providing continuity and tradition — but perhaps failing to meet evolving needs.

The Michigan Department of Conservation operated for nearly 50 years, beginning in 1921, a period of rapid growth in the state forest and park system and the gradual adoption of pollution control measures by commissions and boards. That changed in 1970 when, by executive order, then-Governor William Milliken united natural resources and environmental programs under one roof and called it the Department of Natural Resources. This structure, in turn, lasted a quarter century.

In 1995, then-Governor John Engler divided the natural resources and environmental programs again into a Department of Environmental Quality and DNR. In 2009, then-Governor Jennifer Granholm united them under the banner of the Department of Natural Resources and the Environment. And in 2011, then-Governor Rick Snyder cleaved them again in two.

This month — on Earth Day, April 22 — the latest reorganization takes effect. Governor Gretchen Whitmer has created a Department of the Environment, Great Lakes, and Energy (EGLE) to coexist with the DNR. It’s the most ambitious of all the natural resource agency reorganizations.

The order says, “State government needs a principal department focused on improving the quality of Michigan’s air, land, and water, protecting public health, and encouraging the use of clean energy. That department should serve as a full-time guardian of the Great Lakes, our freshwater, and our public water supplies.” It is unprecedented for energy to be a major priority of the state’s environmental agency.

The order contains several unique features and innovations:   

  • An Environmental Justice Public Advocate to, among other things, “accept and investigate complaints and concerns related to environmental justice within the state of Michigan.”
  • A Clean Water Public Advocate to handle complaints and “assist in the development, and monitor the implementation, of state and federal laws, rules, and regulations relating to drinking water quality.”
  • An Office of Climate and Energy to “provide insight and recommendations to state government and local units of government on how to mitigate climate impact and adapt to climate changes.”

These three focal points respond to specific environmental disasters and neglect of the previous administration, most notably the Flint drinking water tragedy, but they should have statewide impact, redirecting the new agency toward its most critical challenges.

Any new agency must establish new traditions and provide a face to the world. The old DNR was seen as both strong on resource protection and occasionally arrogant in its relations with the public. It’s to be hoped that the new EGLE (along with a reinvigorated DNR) emphasizes the former and shuns the latter. If it does, the Governor will have done the state, and future generations, a considerable favor.

FLOW Praises Governor for Action on Line 5


FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email: Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email: olson@envlaw.com
(231) 499-8831 

Dave Dempsey, FLOW Senior Advisor                                                     Email: dave@FLOWforWater.org
(612) 703-2720


In the wake of an opinion by Attorney General Dana Nessel invalidating a law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, Governor Gretchen Whitmer has now ordered state agencies to pause permitting on Line 5, an action hailed by FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

“We welcome the Governor’s swift, prudent action to halt the legal effect of the law and tunnel and side agreements,” said Jim Olson, founder and president of FLOW. “Now, it’s time to bring the existing perilous Line 5 in the Straits under rule of law and decommission it as quickly as possible.”

“The backroom deals creating Enbridge’s proposed oil tunnel couldn’t survive public scrutiny, and now we know they can’t survive the rule of law,” said Liz Kirkwood, Executive Director of FLOW. “It’s time to focus on Michigan’s true energy future and protect Michigan’s Great Lakes and our economy from a Line 5 pipeline rupture. The path forward for Michigan is for Gov. Whitmer to immediately begin the process of decommissioning Line 5 in the Straits of Mackinac.”


FLOW Praises Attorney General for Restoring Rule of Law on Line 5


FOR IMMEDIATE RELEASE:                                                                      March 28, 2019

Liz Kirkwood, FLOW Executive Director                                                   Email:Liz@FLOWforWater.org
Office: (231) 944-1568, Cell: (570) 872-4956                                           Web: www.FLOWforWater.org

Jim Olson, FLOW Founder and President                                                Email:olson@envlaw.com
Cell: (231) 499-8831

Dave Dempsey, FLOW Senior Advisor                                                     Email:Dave@FLOWforWater.org
(612) 703-2720


FLOW supports attorney general’s process and opinion, which is binding on state agencies and rejects the fatally flawed law and undermines side agreements on Enbridge oil pipelines, proposed tunnel in Mackinac Straits


In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a hastily crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing “Line 5” oil pipelines in the Straits to continue operating for another decade as the tunnel is considered and possibly built.

The move comes in response to a formal request by Gov. Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.

“We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water, and natural resources are treated and protected as ‘paramount,’” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.

The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreement called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99-year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain.

Public Act 359 and the related 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 (GLSLA) 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 side agreements are peppered with other serious problems, most of which are covered by the questions the Governor asked the Attorney General to answer, which 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 commingling 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 Attorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Olson.

FLOW recommends that Gov. Whitmer take immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac 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, including by:

  • Acknowledging that State of Michigan agencies are bound by the attorney general’s opinion.
  • Sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law. The rule of law requires a full consideration of the risk to the paramount public rights in the soils and waters of the Great Lakes, and a showing that the company has no prudent and feasible alternatives to using the Great Lakes as a shortcut for western Canadian oil on its way to refineries in eastern Canada as well as overseas markets. If the company does not chose to do this, or cannot satisfy these mandatory requirements that protect the Great Lakes, then it should choose to use other parts of its several-thousand mile system.
  • Starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority, in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.

“Public Act 359, coupled with the State’s public entanglement with Enbridge, has put private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes,” said Olson. “The unconstitutional 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.”


Taking Action on the “Forever Chemicals”


Governor Whitmer’s directive Tuesday to the Department of Environmental Quality to develop an enforceable state drinking water standard for toxic PFAS chemicals is a welcome step. It signals that her Administration believes the health of Michigan citizens and the environment is not something to be left to foot-dragging federal officials, and that she is actively engaged in combating this threat.

“All Michiganders deserve to know that we are prioritizing their health and are working every day to protect the water that is coming out of their taps,” Whitmer said. 

“As a result, Michigan will begin the process to establish PFAS drinking water standards that protect public health and the environment. Michigan has long advocated that the federal government establish national standards to protect the nation’s water from PFAS contamination, but we can no longer wait for the Trump Administration to act.” She set a deadline of October 1, 2019 for the standards.

PFAS compounds are a group of emerging and potentially harmful contaminants used in thousands of applications globally including firefighting foam, food packaging, and many other consumer products. These compounds also are used by industries such as tanneries, metal platers, and clothing manufacturers.

The state oversaw the sampling of 1,114 public water systems, 461 schools that operate their own wells, and 17 tribal water systems. Levels of PFAS below 10 parts per trillion (ppt) were detected in 7 percent of systems tested. PFAS levels between 10 and 70 ppt were detected in 3 percent of systems tested.

“PFAS are extremely toxic ‘forever chemicals’ contaminating far too many Michiganders’ tap water. By pushing for strong standards, the Governor is taking an important step to protect public health — but residents, particularly children and pregnant women — are being hurt by this chemical today. Fast action is needed to protect the state from the mounting health crisis caused by widespread drinking water contamination,” said Cyndi Roper, Michigan Senior Policy Advocate for the Natural Resources Defense Council.

The announcement was also important because once the federal government finally acts, a bad law passed by the Michigan Legislature in last year’s lame duck session could complicate the state’s efforts to set a protective standard. That bad law prevents Michigan from adopting standards more protective than federal limits unless the state can show “clear and convincing” evidence that it is needed, a high legal bar. By acting before a federal limit is in place, the state can use the best science to set a protective standard.

Proposal to Abolish Required Septic System Inspections Threatens Kalkaska Waters


With an estimated 130,000 septic systems leaking E. coli and other pollutants into Michigan groundwater, lakes, and streams, you would hardly think it time to relax inspection requirements.

But that’s exactly what Kalkaska County is considering this spring – and this has some local residents and environmental experts concerned.

Kalkaska County has a sanitary code that requires inspections of septic systems when residential properties sell. There are no such statewide requirements, making Michigan the only state without them and leaving the job of protecting waters from septic systems up to local government.

“This proposal [to kill the inspection requirement] is wrong,” says Kalkaska county resident Seth Phillips, who adds the answer to any problems with the District 10 sanitary code’s point-of-sale requirement for septic system inspections is to improve it, not rescind it.

“We know that bad septic systems pollute and pose a threat to our drinking water and our lakes and streams. We need to work together to protect our water for all of us and for future generations,” Phillips says.

A study by Michigan State University found that septic systems in Michigan are not preventing E. coli and other fecal bacteria from reaching our water supplies. Sampling 64 river systems that drain approximately 84 percent of the Lower Peninsula for E. coli and the human-specific source tracking marker bacteria called B-theta, the research found a clear correlation: The more septic systems in the watershed, the more human fecal source-tracking bacteria in the water.

Failing septic systems expose water not only to pathogen pollution from 31 million gallons a day of raw sewage statewide, but also to the release of chemical, pharmaceutical, and other wastes resulting from domestic use.

Point-of-sale inspection ordinances make sense. A study coordinated by Tip of the Mitt Watershed Council found that one third of the aging septic systems in Antrim County have not been replaced.

“Tip of the Mitt Watershed Council has been researching this topic for several years,” says Grenetta Thomassey, the Council’s Watershed Director. “One thing that has been very clear is that Time of Transfer or Point of Sale septic system inspection programs find things wrong with septic systems and require them to be fixed. It may not be perfect; some failing systems are not inspected because the property is not being sold or transferred. However, it’s obvious from the annual reports that problems are being found and corrected, and this is a step in the right direction and helps protect our water resources.”

A report on the Kalkaska County point-of-sale program found that between April 2017 and March 2018, 335 inspections were performed in the County. Forty-five systems were in compliance with the sanitary code, while three were found to be failing. The other 287 were identified with some level of concern. So, 87% of the inspected systems during the period presented some level of issue for owners to address or be aware of. 

In a letter to Kalkaska County Commissioners, FLOW urged the officials not to eliminate the requirement.

“Requiring inspection and correction of failing on-site septic systems at the time of property sale is a reasonable method of protecting the public’s waters without unduly burdening property owners,” wrote FLOW executive director Liz Kirkwood. “It assures that the vast majority of systems will be inspected at some time to assure they are providing proper stewardship of our shared waters. Eliminating this ordinance will remove the only protection now in place to protect the public health and environment from the threats posed by inadequate septic systems.”

The District 10 Health Board will hold a public hearing on the proposed change on Friday, April 26 at the District 10 office in Cadillac, 521 Cobb Street, at 9 a.m.


What Everyone Should Know About the Great Lakes


Freshwater Facts

  • Only freshwater will sustain human life.
  • About 97% of the water on earth is salt water.
  • Of the remaining fraction of approximately 3% that is freshwater, over 98% is locked in ice caps, glaciers and groundwater.
  • Of the remaining fraction of about 1.2% of all freshwater, about .25% is found at the surface in lakes and streams.
  • The Great Lakes contain almost 20% of that .25% – one-fifth of all available surface freshwater in the world.[1]

Great Lakes Volume and Transit Facts

  • The Great Lakes contain 95% of the surface water volume of the United States.
  • The Great Lakes contain 84% of the surface water volume of North America.
  • Only 1% of the volume of the Great Lakes is renewed annually from precipitation and runoff; the water balance of the Lakes is delicate.
  • The average drop of water takes 173 years to pass through Lake Superior.
  • The average drop of water takes 204 years to pass from Lake Superior to the ocean.

Other Facts

  • Spread evenly across the 48 contiguous states, the Great Lakes would turn the U.S. into a swimming pool 9.5 feet deep.
  • There are approximately 35,000 islands in the Great Lakes, including the largest lake island in the world, Manitoulin.
  • There are about 10,900 miles of Great Lakes shoreline, 200 miles less than the distance between Detroit and Perth, Australia.
  • Measured by surface area, Lake Superior is the largest freshwater lake in the world, Lake Huron is third, Lake Michigan is fourth, Lake Erie is tenth and Lake Ontario is twelfth.
  • Lake Superior could contain all the other Great Lakes plus three more lakes the size of Lake Erie

This list is just one idea; experts can and do have their own lists, many based on extensive grounding in science and/or environmental education.


[1]You will find slightly different figures in different sources, demonstrating the inexactness of much of our knowledge about the Great Lakes.  The Great Lakes Information Network (https://www.glc.org/lakes/) pegs the total at about one-fifth, US EPA (https://www.epa.gov/greatlakes/great-lakes-facts-and-figures) at about 21%, and Environment and Climate Change Canada (https://www.ec.gc.ca/grandslacs-greatlakes/default.asp?lang=En&n=3F5214D0-1) says it’s 18%.


The Green Governor

One governor of Michigan is remembered in large part because of his environmental ethic and accomplishments. William G. Milliken of Traverse City, who turns 97 on Tuesday, March 26, supported and signed into law most of Michigan’s modern environmental laws while he was the state’s chief executive from 1969-1982.

Governor Milliken said his environmental commitment was forged growing up in the water-rich environment of Traverse City. And water cleanup is a key feature of his record, including a ban on high-phosphate detergents that led to a sharp reduction in algae blooms.

Measures signed into law by Governor Milliken include the Michigan Environmental Protection Act, the Inland Lakes and Streams Act, Wetland Protection Act, Sand Dune Protection and Management Act, and many more.

FLOW has wished the Governor a happy birthday beforeand we do so again. His is an environmental legacy that remains evergreen.


Sign of the Times: Toledo Voters Pass Bill of Rights for Lake Erie

Above: A Summer day on western Lake Eire


A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.

As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.

Holy Toledo! The Frustration!

So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie? 

In a word—frustration!

Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.

In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.

The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.

Well, not exactly no action

Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.

Toledo is a Telltale Sign

On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!

Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.

What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.

Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.

Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.

Symbolism, Standing, and Redress

While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do. 

I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.

Recognizing Rights, and Ourselves, in Nature

Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.

Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action. 

When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.

The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.

Michigan, Ohio, and the Public Trust

In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.

Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.

How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.

A Flag to Rally Around

In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.

Jim Olson, President and Founder

It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.


PFAS: An Environmental and Public Health Crisis that Needs Answers and Action


This is the second installment in a series of essays by FLOW board member Rick Kane on the vital issues of risk management and the responsibilities of public officials under the public trust doctrine. Rick is the former Director of Security, Environment, Transportation Safety and Emergency Services for Rhodia, North America. He is certified in environmental, hazardous materials, and security management, and is a graduate of the University of Michigan and University of Dallas.


PFAS – Public Trust and Risk Management

The discovery of groundwater, surface water, and drinking water contamination by fluorochemicals has triggered a global search for polluted areas, toxicology studies, contaminant sources, responsible party identification, and government actions to establish regulations. PFOS (perfluorooctanesulfonic acid) and PFOA (perfluorooctanoic acid) are the primary fluorochemicals of concern; however, they are only two members of a very large class known as per- and polyfluoroalkyl substances (PFAS) under investigation. PFAS are used as raw materials and in final products such as firefighting foams, industrial cleaning and treating products, and fabric and paper with water or grease repellents, and also to fabricate membranes for medical and water treatment applications.

PFOA production started in 1947, and during the 1960s to 1990s, internal DuPont studies showed their presence in workers’ blood and drinking water, but DuPont did not disclose the findings of their studies to the U.S. Environmental Protection Agency (EPA). In 2000, the company 3M, after negotiations with the EPA, announced a phaseout of PFOS. In 2005, the EPA designated PFOA as a “likely carcinogen,” and DuPont paid a settlement for withholding information. In 2012, an independent science panel reported linkages to health problems, followed in 2015 by hundreds of scientists signing an international “call to action.” Faced with an emerging PFAS contamination crisis of its groundwater, surface, and drinking water, Michigan in 2017 set a high priority to identify areas of contamination and supply safe drinking water and became one of the leaders in addressing the issue, with other states now starting programs. In Europe, through the European Union REACH program (Registration, Evaluation, Authorization, and Restriction of Chemicals), specific controls and implementation dates have been established for immediate action and deadlines set for 2020. C&EN Per-Fluorinated Chemicals Taint Drinking Water,  PFAS Response – Taking Action Protecting Michigan,  Understanding REACH,  EU Restriction of PFOA, Related Substances

PFOS and PFOA, once widely used, are no longer manufactured in the United States. PFAS have an extremely low level of biodegradability, are environmentally persistent, and, as a result, are known as the “forever chemicals.” Scientists are still learning about the health effects, but current studies have shown that certain PFAS may:

  • Lower a woman’s chance of getting pregnant;
  • Increase the chance of high blood pressure in pregnant women;
  • Increase the chance of thyroid disease;
  • Increase cholesterol levels;
  • Change immune response; and
  • Increase the chance of cancer, especially kidney and testicular cancers.

States of emergency have been declared in several communities where high levels have been detected in drinking water. U.S. lawmakers are urging the EPA to regulate these chemicals as a class. Presently, there are more than 4,700 PFAS registered by the Chemical Abstracts Service (CAS), a division of the American Chemical Society, and the health and environmental impacts are known for only a very few. C&EN U.S. Senators Seek Regulation PFASs

Michigan adopted 70 parts per trillion (ppt) as a legally enforceable cleanup level for PFOS or PFOA. However, a federal report, once suppressed by the U.S. military and EPA, proposes a safe daily level of consumption for the two PFAS at one-tenth the current EPA level. The Agency for Toxic Substances & Disease Registry (ATSDR) translated these dose levels to drinking water maximums of 11 ppt for PFOA and 7 ppt for PFOS. C&EN Michigan Declares State of Emergency C&EN U.S. Report Proposes Lower Safe Limit

The PFAS crisis is an ongoing example of a failure to apply comprehensive risk assessment and management practices and to uphold the Public Trust Doctrine as outlined in the first installment of this risk management series. A crisis developed because commercialization did not wait for the science; human health, drinking water supplies, and environmental protection were compromised. Industry continues to promote the use of the “best available science” in restricting and regulating PFAS. However, the knowledge base on alternatives, toxicology, environmental transport and fate, mitigation, and remediation continues to lag the commercial introduction and use of PFAS. There is a lack of precaution and use of public trust principles to protect public waters.  

PFAS Risk

Risk was introduced in the previous installment as a function of probability and consequence. Probability can be further represented as a function of threat and vulnerability. 

Risk = Probability x Consequence

Risk = Threat x Vulnerability x Consequence

PFAS Threats

Lack of Regulations – PFAS are not yet classified as hazardous materials under air, water, waste, or safe drinking water regulations. PFAS are present and causing problems in all of these media due to a lack of appropriate chemical management and regulatory controls.

Inadequate Toxicology and Ecosystem Threat Information – New PFAS are being identified in the environment and “allowable limits” are under study and debate. “Allowable” drinking water concentrations are extremely low, parts per trillion compared to other hazardous chemicals such as PCBs and chlorinated solvents in parts, which are measured in parts per million and billion; PFAS limits are orders of magnitude lower. This is a crisis requiring a priority and new approaches to mitigate water contaminants at extremely low concentrations that move easily through the environment. 

Unidentified Contaminated Sites and Water Bodies – Hot zones are still being discovered. PFAS are found at military airbases, firefighting training facilities, and sites where the compounds were used to fight fires, were and are being manufactured and used to make products, and were disposed of or landfilled.

Lack of Control over Existing Stocks, Inventories – There are unknown quantities of PFAS at fire departments, cleaning and treating businesses, waste disposal operations, and product manufacturers. How are the PFAS being stored, used, disposed of, and replaced? One drum released to surface or groundwater can contaminate an enormous volume of drinking water.

Continued Manufacture and Use – New PFAS materials are being manufactured and used with a lack of information on health and environmental impacts and regulations. There are thousands of PFAS compounds, derivatives, and degradation products with health and safety information known only for a few.

Use of “Best Available Science” for Regulation – New regulation is needed for industry when “best available” is inadequate and a lack of “precaution” has expanded the number of crisis sites and new chemicals introduced to the environment.  For example, the commercialization of “GenX” fluoro-surfactant (hexafluoropropylene oxide dimer acid HFPO-DA parent acid) as a partial substitute for PFOS and PFOA was believed to be a safe alternative, but was later discovered also to be toxic.  Discharges from the Chemours (formerly DuPont) GenX manufacturing plant near Fayetteville, North Carolina, have contaminated the Cape Fear River and groundwater in the region. Air emissions from the plant have even contaminated rainwater, which, in turn, contaminated groundwater that is not hydraulically connected to the river or groundwater near the plant!  Chemours to Pay Fine GenXEPA Releases Draft Safe Daily GenX Dose,  The Fluoro Council

Vulnerability to PFAS

Children are the Most Vulnerable to the effects of PFAS – Exposure is not only from drinking water, but also from swimming in contaminated areas and eating contaminated food. 

PFAS Move Easily in Surface and Groundwater – Water analysis takes time and must be done by certified laboratories using expensive equipment (EPA Method 537 Rev 1.1 – Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS).  This inhibits quick identification and delineation of hot zones. It is estimated that there are thousands of potentially contaminated sites in Michigan alone.  Record Eagle PFAS Plume Confirmed Near School

Human Health Impacts Occur from Long-Term Exposure – Symptoms and warning signs are not immediately evident.

Effectiveness of In-Home Removal Systems – Certain in-home drinking water treatment systems can be used for PFAS, but they are not efficient compared to the removal of other contaminant chemicals. The operating life of activated granular charcoal filters, for example, is shorter because of the low concentration levels (parts per trillion) that must be achieved. In addition, effectiveness has only been tested for a limited number of PFAS. Proper disposal of used filters is an issue to prevent PFAS from reentering the environment.

PFAS Consequences

PFASs are continuing to be introduced into the ecosystem – And PFAS move rapidly through surface and groundwater. Extremely low concentrations have toxic impacts. Millions of people are at risk and others remain in the dark as testing and delineation goes on.   

Food Contamination and Consumption Restrictions – Restrictions, especially for eating fish, have been issued at some locations.  Health impacts from consumption are speculated, but largely unknown. PFAS bioaccumulate as they move up the food chain.

Water Recreational Use Limitations – Recreational restrictions are being imposed in some areas to avoid direct contact with PFAS foams during swimming and general water recreational activities. 

Recommendations – Close the Gaps and Take Stronger Action

Excellent listings of recommendations for establishing regulations and identifying and mitigating the current crisis in Michigan can be found on the websites of the Michigan Environmental Council (MEC) and Michigan Department of Environmental Quality (MDEQ).  Michigan Environmental Council PFAS Recommendations,  PFAS Response – Taking Action Protecting Michigan 

Important and additional actions include, but are not limited to, the following:

  1. Government officials must recommit to their primary duty to protect human health and safety, protect the environment, and meet their public trust duties. Accountability for the PFAS crisis is resulting in huge liabilities for both government and private sector entities.  Government officials cannot allow continued risk and consequences to the public as the battle ramps up regarding who is responsible and who pays.  
  2. Reclassifying the compounds to a higher regulatory risk level will enable stronger action to be taken to protect drinking water, discharges to the environment, remediation activities, and control of manufacturing, use, and storage. Lawmakers have proposed legislation, but actions are slow and PFAS continue to be discharged and spread through the environment.
  3. New regulations under the Toxic Substances Control Act (TSCA) and/or state authority should use a precautionary approach to PFAS manufacturing, use, new chemical approvals and disposal. Use of “best available science” and “predicting toxicity” is not adequately addressing all of the risk elements. Health and the environment continue to be put in jeopardy. The use of best available science only works when the body of knowledge is adequate to determine the full risk to human health and the ecosystem.  The current state of knowledge is still far short in understanding risk.
  4. Establish a lower drinking water Maximum Contaminant Level (MCL) for PFAS. A Center for Disease Control (CDC) draft study indicates 7 ppt for PFOS and 11 ppt for PFOA, compared to the federal limit of 70 ppt.
  5. Ensure an adequate number of water testing laboratories are in place with appropriate sample turnaround times.
  6. Rick Kane, FLOW Board Member

    Proactively, identify all users and stocks of PFAS and issue interim guidelines on proper handling and disposal. Already, abandoned drums of PFAS have been found in remote locations. Past experience with other hazardous chemicals indicates that illegal disposal and further contamination will occur. Best practices and approved disposal operations must be initiated as soon as possible. 

  7. Standards and regulations must be set for PFAS users and disposal operations, possibly starting with “maximum achievable control technology,” until risks have been identified and quantified.

The State of Michigan needs to continue to improve on communications transparency with a timetable, milestones, best practices, and newly identified risks on a statewide mapping system.