Since 2001, the University of Toledo College of Law has hosted an annual Great Lakes Water Conference that brings together leading academics, policy makers, and legal practitioners to explore the range of legal issues facing the Great Lakes. I make the trip down to Toledo almost every year for the conference, as it has become a reliably useful and productive forum to debate current issues and exchange cutting-edge ideas. Professor Ken Kilbert has continued to develop the program every year, and this year’s conference on November 13 has a great lineup of topics and speakers.
Congressman Bart Stupak of Michigan (the leading critic of the Great Lake compact in Congress last year) and Cam Davis, the EPA’s point person on Great Lakes restoration, are the headlining keynote speakers. Other panels and speakers will discuss Great Lakes restoration and implementing the Great Lakes compact. I’m moderating a panel on the reach of the Clean Water Act, focusing on recent developments in wetlands jurisdiction and protection, regulation of ballast water discharges, and water transfers. For the full agenda and registration information, see the conference brochure.
Tar sands oil gives coal some competition for the title of dirtiest fuel. From mining to refining to burning, tar sands oil is an environmental disaster. The Great Lakes is becoming a center for refining imported tar sands oil, which comes from western Canada. As a result, refinery pollution is threatening our water and our communities. BP’s Whiting Refinery on the shores of Lake Michigan in Indiana has become a focal point in the legal fight to stop tar sands pollution in the region. Environmental groups scored a victory earlier this month when the EPA objected to an Indiana permit for air pollution from the refinery. Meleah Geertsma, an attorney and public health expert with the Environmental Law and Policy Center in Chicago, was involved in the fight against the air pollution from the tar sands refinery, and wrote this guest post on the victory and what it means in the fight against tar sands pollution in the Great Lakes.
On October 16, in a move that could significantly improve air quality for the Great Lakes region, the U.S. EPA sent a clear message to the oil industry that the federal agency is serious about air pollution from refining – especially the processing of dirty Canadian tar sands crude. EPA Administrator Lisa Jackson on that day issued an order objecting to a permit granted by Indiana to BP’s Whiting Refinery, located on the shores of Lake Michigan. At the heart of Administrator Jackson’s order is a concern that numerous potential sources of air pollution are going uncounted and uncontrolled. And that the industry is ignoring or downplaying the air pollution impacts of processing the much heavier, dirtier Canadian tar sands crude, a crude that contains high levels of sulfur and toxic metals.
The BP operating permit was issued to enable a significant increase in the processing of heavy tar sands crude at BP’s Whiting, Indiana facility. However, the permit allowed BP to expand without installing so-called “best available control technology,” on the premise that increases in air pollution from the expansion would be balanced by decreases in pollution from the existing refinery. Such a trade-off of increases and decreases is referred to in air permitting as “netting.”
In response, several environmental groups and individual citizens filed a petition with U.S. EPA, asking the agency to object due to BP’s and the agency’s failure to count numerous potential sources of increased air pollution. Among these sources are increased operations of certain equipment needed to process larger amounts of Canadian crude, as well as greater levels of sulfur and toxics in the crude itself.
The extraction of Canadian tar sands oil is a hugely destructive act. All wetlands must be drained, rivers diverted, and trees and vegetation stripped from the land. The heavy crude is then taken from the land in a strip-mining process where hydraulic shovels tear into and remove the surface land. Crude existing at lower levels is extracted by pumping high pressure steam into the earth. Since the crude is too thick to flow through pipelines, it must be processed in another step that uses immense quantities of water and energy. The drastic effects on local landscapes are long-lasting, as very little land directly affected by the process has been restored to a level equivalent to the pre-mining land capabilities, and virtually no reclamation efforts occur for the first 20-30 years of a project. Moreover, tar sands extraction produces significant threats to local public health – from air pollution that results from mining and toxics that get into local water supplies. These impacts have caused grave environmental justice concerns, as they occur on or near tribal lands.
Canadian tar sands extraction and processing also are large contributors to global warming, resulting in more greenhouse gases than processing of traditional crudes. The BP Whiting expansion alone would result in an additional 1.5 to 2 million tons of carbon dioxide per year, or as much greenhouse gas pollution as a new medium sized coal plant. Concerns about the local and more global impacts prompted the U.S. Conference of Mayors to pass a resolution in 2008 against using tar sands oil, as well as to send a letter to President Obama urging him to move U.S. energy policy away from tar sands oil.
While these land and greenhouse impacts have been widely discussed in the media, air pollution associated with expanding Canadian tar sands crude refining capacity has gone largely unnoticed. The EPA objection is a catalyst that has opened up the conversation, making the front page of the Chicago Tribune.
In addition to its significance for tar sands refining, the EPA objection signals a strong agency intent to better understand and quantify sources of air pollution at refineries. Refineries are highly complex industrial sources with numerous pieces of equipment. This equipment can produce air pollution either directly from its operation, as with a coker where depressurization of the drums and cutting out of coke produces various emissions, or in the form of fugitive emissions (from leaks, valves, hinges, etc.). In the past decade, advances have been made in the ability to detect and measure these emissions. Numerous tests using DIAL (for “Differential Absorption Lidar”) and other technologies have already occurred at refineries overseas, in Canada, and here in the U.S. Such tests, along with other means for estimating emissions, contribute to our better understanding refinery air pollution. The EPA objection takes the stand that we must fully use our capabilities to estimate and control the air pollution from refineries, and industry can no longer hide behind unsupported claims that pollution cannot be estimated or will be minimal or non-existent. While there will be much work ahead to implement the objection in this case and in the future, the environmental community applauds EPA’s move.
The Great Lakes restoration campaign - led by conservation groups, industry, and state and local governments to get more federal funding for research, habitat restoration, and toxic clean-ups - is taking some deserved criticism for simply throwing a lot of money at existing problems without providing new solutions. As Dan Egan reported in the Milwaukee Journal Sentinel article “Great Lakes aid isn't a cure-all; Despite $475 million restoration plan, damage continues in freshwater system”, some environmental advocates are beginning to question the effectiveness of a strategy that focuses on spending money on old problems as new and ongoing sources of pollution and degradation go unchecked.
I’m not saying the Great Lakes should turn down federal restoration funds – the funded projects will do some good things and pump more money into our regional economy. However, it doesn’t make much sense to spend federal money researching responses to invasive species when the federal government is still dragging its feet in closing the door on new invasive species coming into the Great Lakes. Similarly, restoring coastal habitat is certainly important, but the federal government’s and states’ collective failure to enforce wetlands laws will undermine the effectiveness of money spent on coastal habitat restoration. And as we ask Congress for money to clean up legacy contamination hot spots in the Great Lakes, we should be preventing new toxic messes from occurring – such as contaminated coal waste landfills on Saginaw Bay.
There is also a public perception problem with the Great Lakes restoration campaign. It gives the public the sense that our environmental problems are remnants of the old days, before laws like the Clean Water Act were put in place. If this were true, then spending money on old problems would make sense. But while we have made tremendous progress in environmental protection, the reality is that many environmental disasters are still occurring. The recent New York Times Toxic Waters series illustrates how pollution from coal mining, coal waste, and animal feedlots is literally poisoning our waters. If we spent a fraction of the restoration money on enforcing existing laws to prevent new sources of pollution, we would see a better return on our investment with cleaner water and healthier families.
Michigan has just announced new statewide rules to significantly limit mercury emissions from power plants. While the rules aren’t ideal, they are a significant victory on a critically important environmental and public health issue. Mike Shriberg, Policy Director of the Ecology Center, has worked on this issue for many years, going back to his former work with Environment Michigan. Mike was kind enough to offer this guest post on the new mercury emission rules.
In 2002, then-gubernatorial candidate Jennifer Granholm pledged to “support the phaseout and elimination of mercury emissions from coal-fired power plants.” In 2006, when running for reelection, Governor Granholm directed the Michigan Department of Environmental Quality “to reduce mercury emissions from electric utilities by 90 percent by 2015” stating “It is unacceptable that in a state where fishing contributes over $2 billion to the economy annually, we must warn people not to eat the fish that they catch in our beautiful lakes because of mercury contamination.” Finally, 7 years and countless hours of advocacy later, the MDEQ announced this week that it has finalized rules requiring power plants to reduce mercury pollution 90% by 2015, making Michigan the 19th state to regulate mercury from power plants. (See press coverage from the AP here.)
The science on mercury could not be clearer. We’ve known for centuries that mercury is a major threat to public health, especially children’s health. Even the Governor stated “mercury is a potent neurotoxin that threatens the health of Michigan families, children, and nursing mothers.” Mercury, simply put, causes brain damage as well as a host of other neurological problems (such as vision and memory impairment). And Michigan is particularly hard hit, with mercury warnings in all 11,000 inlands lakes and the entire Great Lakes shoreline, and 10,000 – 20,000 babies born each year with significantly elevated mercury levels.
We also know that the greatest source of mercury in the state is coal-fired power plants, releasing approximately 4,000 pounds in the base year of 1999. So, you would think that a 90% reduction would mean 3,600 less pounds of mercury per year by 2015. Not so - this is the upside down world of Lansing politics, after all. Unfortunately, the mercury rule is riddled with loopholes, off-ramps, exemptions and extensions, likely resulting in an actual reduction of only 77%, according to DEQ’s own estimates. These problems with the rules – which environmental and conservation groups fought vigorously to stop – include allowing utilities to calculate mercury reductions based on the mercury content in the coal (as opposed to mercury coming out of the smokestack, which is what actually impacts people), requiring only 75% reductions if power plants reduce other pollutants significantly, exempt smaller plants, and allow extensions for economic hardship or technological breakdowns. These comments from the major environmental and conservation groups in the state outline these problems in more detail.
Why isn’t a 90% reduction a 90% reduction? The answer is the politics of power in Lansing. The utilities wield an exorbitant amount of influence on our policy makers and regulators, with the halls of Lansing crawling with utility lobbyists and staffers. For example, the utilities literally share an office with our Public Service Commission, who is supposed to be overseeing them in the name of the public interest. The public interest advocates do not have the resources – and certainly not the money – to continually win against the utilities’ lobbying might on mercury or any other issue. To me, it’s a prime example of the corruption of money in politics. What particularly galls me in this otherwise typical case of special interest politics is that it’s your money – your utility bills for which you have no real choice of companies – that’s paying to work against your interests in clean energy and a healthy environment (not to mention reasonable rates).
The positive bottom-line is that these rules, while certainly flawed, are a major step forward and help fill the void left by the vacated Bush-era pitifully-weak federal rule. Even if we only reach the predicted 77% reductions, that’s still nearly 3,000 pounds less of mercury in our air and water every year – no small accomplishment for our health and environment. And, it’s entirely due to the tireless work of the environmental and conservation community – led by the Michigan Environmental Council, Environment Michigan, PIRGIM, Michigan United Conservation Clubs, the National Wildlife Federation and Ecology Center, with strong support from Clean Water Action, Sierra Club, Michigan League of Conservation Voters and many others. The tactics ranged from pressure to cajoling, and lobbying to deep policy analysis. Personally, this was the first campaign I engaged in and helped lead after returning to Michigan as an environmental advocate over 5 years ago, so it’s particularly sweet to have a tangible accomplishment that directly impacts Michiganders’ lives – something all too rare in policy advocacy.
Federally reserved water rights are a major issue in the West, and beginning to emerge in disputes and policy issues in the Great Lakes region. While federally reserved water rights are well established for surface waters, courts and states are split on their applicability to groundwater. Carlin Danz, a former water law student and research assistant at the University of Michigan Law School, has prepared an excellent analysis of the debate over recognizing federally reserved groundwater rights. He concludes that courts should recognize federally reserved groundwater rights for numerous legal, policy, justice, and scientific reasons. Here’s his guest post with a link to his full paper:
When the federal government explicitly reserves land from the public domain, it implicitly reserves sufficient water to fulfill the purpose of that reservation. This statement of law is known as the federally reserved rights doctrine and commonly called the Winters doctrine based on the leading precedent, Winters v. United States.
Traditionally, reserved rights have only been asserted for surface water. However, groundwater should also be made available to federal reservations in order to satisfy their needs. This is logical for a variety of reasons. It is widely acknowledged that groundwater and surface water are hydrologically interrelated. Further, groundwater is often more economical, more readily available, and of higher quality than surface water.
The majority of courts that have directly addressed the scope of reserved rights have recognized that the doctrine encompasses both surface water and groundwater. Yet, despite the judicial trend toward comprehensive recognition, the Supreme Court has not seen fit to decide this issue with finality.
Without guidance from the Supreme Court, state supreme courts will continue to split on the issue of recognizing reserved rights in groundwater. Until the scope of reserved rights is conclusively delineated, federal reservations will receive inadequate and uneven protection under the law, and reserved rights will remain one of water law’s most contentious issues.
This paper (free download here) examines the judicial history of the federally reserved rights doctrine. It also enumerate arguments for (and against) the recognition of groundwater in reserved rights. I conclude with the assertion that the Supreme Court must recognize reserved rights in groundwater for the economical, efficient, and just disposition of water resources in the United States.
Governor Granholm has issued an executive order to combine the Department of Environmental Quality and Department of Natural Resources into one new agency, to be called the Department of Natural Resources and Environment. The plan is to take effect January 17, 2010.
The merger is motivated primarily to save money as the state agencies face a huge budget crises. Environmental regulation and natural resource management obviously go together, and were under the same state agency in Michigan until former Governor Engler created the Michigan Department of Environmental Quality in the 1990s. As a candidate for Governor, Granholm pledged to recombine the agencies, and has now finally made good on that promise.
The merger should produce better integration of natural resource management with environmental protection and regulation. It could also help bring a new sense of purpose to the agency charged with protecting our water, air, natural resources, and public health. But the merger alone won’t solve the more fundamental budget problems and lack of support and resources that undermines the state’s environmental protection laws. With a new agency in place, it’s time to develop a long term funding solution for environmental protection in Michigan.
While Michigan’s budget situation is still not resolved, the legislature has cut general fund support to the Michigan Department of Environmental Quality by 39%. The Department of Environmental Quality is the state agency responsible for protecting Michigan’s water, air, natural resources and public health – although whether they can live up to that responsibility without adequate resources remains to be seen. This is another blow to an agency that already suffers from a lack of adequate resources and political support.
As detailed in Eartha Melzer’s article from the Michigan Messenger, there are some funding solutions to this problem, if lawmakers have the political will to value environmental protection. If not, the public may turn to the federal government to do the job right. Many of the Department of Environmental Quality’s regulatory programs implement federal environmental laws and operate under delegation from the US EPA. If the state continues to undermine the ability of the Department of Environmental Quality to implement and enforce our environmental laws, the US EPA could revoke its delegations to the state, and force Michigan’s companies and local governments to get federal approval for water and air pollution permits. That’s not an ideal situation, but it may be better than leaving the job to an understaffed agency that lacks the resources to do the job right.
The EPA has just announced a proposed rule to regulate greenhouse gas emissions under the New Source Review program of the federal Clean Air Act. This regulatory action is hardly a surprise, as it’s been coming ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act. Still, it’s a welcomed development from the Obama administration and EPA, and comes with a notable twist and at a notable time.
First, while the Clean Air Act’s permitting requirements typically apply to emissions greater than 250 tons per year, EPA has proposed “tailoring” the threshold for greenhouse gas regulation at 25,000 tons per year of carbon dioxide (or equivalent greenhouse gases). This makes some sense, as it will still regulate about 70% of stationary greenhouse gas emissions (basically big sources like power plants, incinerators, and refineries), without creating a regulatory burden for smaller sources. But while the rule makes sense, the potential conflict with the Clean Air Act’s statutory language will almost certainly be the basis for large industrial interests to bring a legal challenge.
Second, the announcement of the proposed rule came right after the Clean Energy Jobs and American Power Act was introduced in the U.S. Senate. The legislation, commonly called the Boxer-Kerry bill after its lead sponsors, creates a comprehensive regulatory and energy policy to address climate change and greenhouse gas emissions. Unlike the legislation passed by the House earlier this year, the Senate legislation also preserves the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act, meaning that the EPA’s proposed rule would still be effective if the legislation is ultimately passed.
I expect two immediate outcomes of the EPA’s proposed rule. First, large industrial greenhouse gas polluters will challenge the rule based on the high threshold which lets small polluters off the hook. (One potential hurdle for such a lawsuit would be standing, since large polluters aren’t directly harmed by the EPA’s decision not to regulate small polluters.) Second, the rule will put more pressure on Congress to enact climate change legislation, but at the same time it gives environmental groups good reason to consider the benefits of the currently regulatory approach under the Clean Air Act. Despite these issues, it’s now practically certain that greenhouse gases from large sources will soon be regulated, either under the Clean Air Act or under new legislation. Either way, the days of unregulated greenhouse gas emissions will soon be over.
The Great Lakes Environmental Law Center has filed an amicus curiae (friend of the court) brief in the U.S. District Court for Washington D.C. in Government of the Province of Manitoba v. Ken Salazar, et al. The case involves a challenge by Manitoba, joined by Canada and several conservation organizations, to the U.S. Bureau of Reclamation’s Environmental Impact Statement for the Northwest Area Water Supply (NAWS) Project.
The NAWS Project is the first United States transbasin water transfer project to breach the barrier between the Missouri River Basin and the Hudson Bay Basin. The diversion could transfer invasive species and diseases into downstream waters in the United States and Canada, and threatens the quality and quantity of water supplies. The proponents of the project have not properly examined less damaging alternatives and options, such as water conservation and recycling. Nor have the project’s proponents undertaken a full review of the environmental impacts of the water diversion. For additional background on the NAWS project and other related projects, see the Great Lakes Environmental Law Center’s Transbasin Water Diversions webpage.
Conservationists have long been concerned with the risks of the NAWS project to water resources. The NAWS water diversion represents the first ever federal project involving an interbasin water transfer linking the Missouri River Basin to the Hudson Bay Basin. For better or worse, it could become an important precedent-setting project for other water diversions. Given the stakes, the Bureau of Reclamation should have adhered strictly to the requirements of the National Environmental Policy Act with a thorough and comprehensive Environmental Impact Statement. Instead, the Bureau of Reclamation is trying to rush through a novel and potentially devastating project that creates a danger for all fresh water basins in the United States, particularly the Great Lakes.
In addition to setting a precedent for other water diversions, the NAWS project threatens water quality and aquatic life in the Missouri River Basin and Hudson Bay Basin. The diversion of water from one separate drainage basin to another will also impact residential, commercial and recreational water use. The reductions of water levels in combination with the impacts from climate change pose an increased risk of invasion of non-native species and subsequent transfer of invasive species through the pipeline to the Hudson Bay Basin.
As detailed in our brief, the NAWS project advances an environmentally and economically unsound water diversion. The project threatens to transfer invasive species, fails to account for climate change impacts, and completely ignores smarter, cheaper, less damaging alternatives like water conservation. In this project and other legal advocacy on transbasin water diversions, the Great Lakes Environmental Law Center will continue to work for sound, practical policy solutions for water resource management while opposing dangerous, precedent-setting projects that could harm the people and environment of the Great Lakes region.
The Great Lakes Environmental Law Center filed the brief jointly with the National Wildlife Federation, Minnesota Conservation Federation, and South Dakota Wildlife Federation, supporting the Province of Manitoba (Manitoba’s brief is available here). The Government of Canada also submitted an amicus brief to support Plaintiff Manitoba’s arguments. Attorney Nick Schroeck led the effort, with invaluable assistance from Wayne Environmental Law Clinic student Catherine Deciechi.
It was a big week in the rapidly developing field of climate change law. First, the U.S. Court of Appeals for the Second Circuit (based in New York) allowed a nuisance case brought by states, New York City, and nonprofit environmental groups against five major power companies that operate coal fired power plants to go forward. The decision, Connecticut et al. v. American Electric Power Co. et al., is a huge victory in the legal fight against climate change. The court essentially rejected every major legal defense that the power companies put forward. Some highlights:
This case will have two immediate implications. First, it opens the door to public nuisance lawsuits against greenhouse gas pollution from power plants, incinerators, cars, and any other major source. By rejecting most of the typical legal arguments that would be used to dismiss a climate change nuisance case with a thorough 139 page opinion, the federal Court of Appeals has provided a legal roadmap for other courts to follow. Second, the decision will motivate industry to seek either new climate change legislation or even regulation under the Clean Air Act to preempt these types of cases in the future. While industry may not love the idea of greenhouse gas regulation, they would take regulation over litigation.
Also, it’s worth noting the judges that decided this case. The three judge panel originally included Sonia Sotomayor, who was ultimately appointed to the U.S. Supreme Court and did not take a part in the final decision. The other two judges are hardly crazy liberals - Judge Joseph McLaughlin was appointed by President George H.W. Bush and Judge Peter Hall was appointed by President George W. Bush.
Just a day after the court’s decision, the U.S. EPA issued its final rule for mandatory reporting of greenhouse gas emissions. Beginning January 1, 2010, the U.S. EPA will require all major sources that emit 25,000 metric tons or more of carbon dioxide (CO2) equivalent per year to report greenhouse gas emissions annually. This new reporting requirement will cover approximately 85 percent of the nation’s greenhouse gas emissions. Reporting greenhouse gas emissions is likely just the first step towards eventually regulating the emissions. Coupled with the court’s decision in Connecticut v. American Electric Power Co., it’s a big sign of progress in the legal fight against climate change.
This guest post is by Chris Winter, Co-Executive Director & Staff Attorney of the Crag Law Center in Portland, Oregon. Chris and I went to law school together, and despite his Pittsburgh roots, he moved out west after graduation. After several years in private practice with Stoel Rives LLP, Chris founded the Crag Law Center to provide affordable legal assistance to groups working on environmental and natural resource issues. Chris had a huge victory this week in a precedent setting environmental justice case under the Civil Rights Act. The case received national coverage (see this article from the New York Times) and will put legal and political pressure on the Obama Administration’s EPA to finally enforce the law to protect poor and minority communities from pollution and other environmental harms.
The Crag Law Center, in partnership with our client the Rosemere Neighborhood Association, recently won an important environmental justice case involving the Civil Rights Act of 1964. Disadvantaged communities all across America have struggled with environmental problems for decades. Pollution is often concentrated in poor communities and communities of color. As far back as 1987, the Commission for Racial Justice, in Toxic Waste and Race, found that race was the single best predictor of where toxic waste facilities were located nation-wide. Since that time, the Environmental Justice movement has emerged and matured in an effort to address environmental inequities.
The Civil Rights Act is one of the few laws that relates directly to discriminatory environmental impacts. Title VI provides that no person shall, “on the ground of race, color, or national origin . . . be subjected to discrimination under any program or activity receiving Federal assistance.” Each federal agency that distributes federal funds must pass regulations to implement the anti-discrimination provisions of the Civil Rights Act.
EPA’s rules prohibit the use of federal funds in ways “which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin.” Any citizen subjected to discrimination can file a complaint with EPA’s Office of Civil Rights, which is supposed to investigate the allegations and potentially pull federal funding.
For years, the Environmental Justice movement hoped that EPA would faithfully enforce the Civil Rights Act. State agencies, for instance, use EPA funding to issue hazardous waste and air pollution permits for industrial facilities that are often located in minority communities. EPA, by enforcing the Civil Rights Act, had the opportunity to ensure that our bedrock environmental laws provide equal treatment for all people.
EPA, however, let that laudable vision slip through its fingers, and the story of Rosemere, as told by the Ninth Circuit, documents the unfortunate history of missed opportunities. Instead of investigating civil rights complaints, OCR simply ignored them. Dozens and perhaps hundreds of complaints from all over the country languished at OCR without any substantive response. Citizens that looked to EPA for protection found instead an agency that turned a deaf ear to their concerns and refused to enforce the law.
Rosemere’s story exemplifies the systemic problems at the Office of Civil Rights. For years the Rosemere Neighborhood Association (RNA) worked to address pollution in the City of Vancouver, Washington. In 2003, RNA filed a complaint with EPA alleging that Vancouver used funding to improve services such as sewer and stormwater controls in affluent neighborhoods while neglecting minority communities. Vancouver then took the unprecedented step of investigating RNA’s internal operations, which was at the time an officially recognized neighborhood association. Vancouver eventually revoked Rosemere’s status, changed the name of the neighborhood, and recognized a new organization as the neighborhood representative.
In December of 2003, Rosemere filed a second Title VI complaint alleging illegal retaliation by the City. The EPA’s Office of Civil Rights (OCR) first accepts or rejects the complaint for investigation, which is supposed to happen within the first 20 days. Eighteen months went by without any word from OCR, and meanwhile Rosemere had been shut out of City-sponsored programs. Rosemere, with Crag’s assistance, filed suit in June of 2005 seeking to force OCR to conduct a proper civil rights investigation. EPA then began the investigation and moved to dismiss Rosemere’s case as moot. The District Court granted the motion, and Rosemere focused on ensuring that EPA carried out a fair and complete investigation.
OCR then had six months by law to finish its work. By February of 2007, eighteen months after accepting the complaint, OCR still had not completed its investigation. Rosemere again filed suit in an effort to get a fair resolution of its complaint. OCR again responded only after litigation was filed and issued its investigative report several weeks later. EPA again moved to dismiss the lawsuit simply because it had finally issued a decision approximately three and half years after the original complaint was filed. The District Court granted the motion to dismiss, and this time Crag and Rosemere appealed the decision to the Ninth Circuit.
In a strongly worded opinion, the Ninth Circuit reversed the District Court and held that the Rosemere’s lawsuit was not moot. We provided information to the court demonstrating that OCR had missed its timelines with respect to every single civil rights complaint filed in 2006 and 2007 and that the problems of delay had plagued EPA’s civil rights program since at least the late 1990s. The Court found Rosemere’s story was part of a “consistent pattern of delay by the EPA.” Writing for a unanimous panel, Judge Tashima wrote that “Rosemere’s experience before the EPA appears, sadly and unfortunately, typical of those who appeal to OCR to remedy civil rights violations.” (The full opinion is available online here.)
Crag and Rosemere now look forward to prosecuting this case before the District Court and holding EPA accountable for the years of illegal delay. More importantly, however, we hope Lisa Jackson, President Obama’s Administrator of the EPA, will take real steps towards reforming EPA’s Office of Civil Rights and realizing the promise of the Civil Rights Act.
Update: In response to Crag’s recent environmental justice victory, EPA Administrator Lisa Jackson has ordered reforms at the Office of Civil Rights to speed the processing of discrimination claims. In addition to ordering her staff “in the strongest terms, to review and reform the Title VI process,” Administrator Jackson also stated that she will create a new senior-level position to oversee and coordinate all diversity issues at the agency.
Inside EPA published a recent story on the latest developments (link here). Crag applauds the move by Administrator Jackson to both recognize the long-standing problems at EPA’s Office of Civil Rights and order immediate reforms. The next step in the process is to ensure that each complaint is given an objective and thorough investigation.
My most recent article, Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water, will be published in the next volume of the University of Denver’s Water Law Review and a prepublication draft is now available online.
The article covers a brief history of bottled water, the business of bottled water, and opposition to bottled water, along with a short summary of international trade law and federal food law as applied to the bottled water market. It then provides a detailed analysis of bottled water issues in the courts, legislatures, and politics – providing case studies of the good, the bad, and the ugly results of bottled water controversies. The article concludes with an analysis of two recent strategies for addressing bottled water – expansion of the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Here’s the abstract, followed by the conclusion:
Abstract:
Throughout human history, water has defined our sense of place. American water law reflects the connections between water and local people, communities, and the environment. Against this backdrop, global water markets have developed to sell and export this increasingly precious resource. Water markets are recognized in international trade law and take many forms, from tankers of freshwater crossing the Mediterranean to bottles of spring water coming to America from distant pacific islands. While the scale of water sales and exports is still relatively small, this emerging market represents a new challenge for management of water resources.
This article examines the challenge of protecting freshwater resources in the era of global water markets by looking at the most mature and developed example – bottled water. Bottled water in America dates back to colonial times, but over the past decade it has become a massive global industry. As bottled water has grown, so has the backlash against it. The resulting lawsuits and legislation offer a glimpse of the future of domestic water law in the global water market era. Bottled water fights provide important lessons for how the law should (and should not) respond to globalization of water use. By learning from these lessons, we can meet the challenge of global trade in water by developing effective legal protections for our freshwater resources.
Conclusion:
Along with climate change, globalization may be the most significant challenge for state water law in the twenty first century. The pressures on water resources are no longer limited to local users and property owners, but now include supply for a global water market. Bottled water is the oldest and most mature water market that transcends state lines. Bottled water disputes have forced state courts and political leaders to reevaluate old doctrines and water management regulations. In most cases, bottled water disputes have lead to meaningful and useful legal reforms, especially in the area of groundwater management. However, in some cases bottled water disputes have exposed problematic flaws in state water law and protectionist knee-jerk reactions by state political leaders that would do nothing to better protect water resources.
Unsatisfied by modest reforms in the courts and legislatures, bottled water opponents have turned their hopes to the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Instead, bottled water opponents and state leaders should take the challenge of bottled water as an opportunity to further reform water management law with an emphasis on resource protection, science-based decision making, and water conservation. These approaches will help protect water resources from the pressures of globalization while respecting property rights and international trade law rules.
The following guest post is by Eric Jamison, a law student at Wayne State University Law School who is working with the Great Lakes Environmental Law Center to assist local and state government leaders in developing a Property Assessed Clean Energy (PACE) Program for Michigan. Eric is an “environmental capitalist” preparing to spend his career finding business solutions that are environmentally sustainable and economically viable for clients. Eric’s legal work is focused on state and local energy policy and the effects of climate change on business. He has a background in business management and obtained his BS in General Management from Oakland University.
While Michigan is struggling economically and lagging behind some other states in making the transition to a clean energy economy, Jeff Irwin, a Washtenaw County Commissioner, is taking a proactive approach to finding solutions to the state’s economic and environmental challenges. Commissioner Irwin approached the Great Lakes Environmental Law Center to research and develop enabling legislation for a Property Assessed Clean Energy (PACE) program for Michigan. The Great Lakes Environmental Law Center, in conjunction with a work team from the City of Ann Arbor, local and national environmental attorneys, and public interest groups, has drafted proposed enabling legislation that will authorize PACE programs. The proposed legislation is modeled after similar program in other states, though additional input from stakeholders familiar with local government bonding in Michigan would be useful as the legislation moves forward. The legislation is being prepared to be presented to the Michigan House of Representatives and Senate for consideration this fall.
In a matter of just over a year, Property Assessed Clean Energy programs and their progeny have spread across the United States with 15 states passing enabling legislation and many others debating similar bills. California and Colorado started the trend in 2008 with AB 811 and HB 1350, respectively. (For more information about PACE programs nationally, see the PACE Now website.)
The enabling legislation expands traditional uses of land secured financing by authorizing local governments to sell revenue bonds to raise capital; the capital is loaned to consenting homeowners within the local government’s jurisdiction to purchase renewable energy systems or to make energy efficiency upgrades to their home or business. Through a special assessment attached to the property, the amount voluntarily borrowed is repaid over a period of years on the property tax bill and transfers with the property in the event of a sale.
PACE programs facilitate adoption of renewable energy technology and energy efficiency improvements by overcoming two significant barriers to entry: (1) the up-front capital; and (2) the payback period. Upfront capital costs have always served as a barrier to entry. With the tight credit market, property owners often cannot get the loans to pay the relatively high costs of a renewable energy system or energy efficiency upgrades. PACE programs allow property owners to voluntarily borrow money from local governments to pay for such upgrades without negatively impacting their credit. The payback period needed to make renewable energy and energy efficiency upgrades economically attractive has often been outside the reach of traditional loan programs. Traditional home equity loans are limited to five to ten years, which don’t allow the increased payment to be offset by the energy savings. Depending on the size of the loan, the PACE payments can be made for a period up to twenty years which allows the annual energy savings to exceed the cost.
In addition, many people are hesitant to make significant renewable energy and energy efficiency investments in their property because of the likelihood of selling the property before the cost savings are realized. PACE programs operate like traditional land secured financing which allows the special assessment to remain with the property in the event of a sale. With the expansion of land secured financing to include PACE programs, two significant barriers to wide spread market adoption have been removed.
States have used land secured financing for over a hundred years to fund improvement projects such as sidewalks, water works, and parks that benefit the public. With the awareness of the damage that greenhouse gases cause to humans and the environment, the definition of what constitutes a public benefit naturally expands to include projects that reduce greenhouse gas emissions. Most states that have passed PACE legislation have included specific statutory language to expand the definition of public benefit to include the adoption of renewable energy and energy efficiency improvements.
As the state and country transition to a low carbon economy, PACE programs are an important step in the right direction. Buildings account for almost 40 percent of greenhouse gas emissions in the United States. PACE programs encourage existing building owners to invest in improvements that will reduce the buildings energy consumption. In addition, most states (including Michigan) now have Renewable Portfolio Standards requiring the production of certain percentages of energy from renewable sources by certain target dates. PACE programs may provide a potential aggregation point for states with these policies.
In uncertain economic times PACE programs offer a low risk, win-win economic development tool. Property owners are justifiable hesitant to invest in their properties; PACE programs mitigate much of the risk through annual energy savings and because the investment is attached to the property and not the property owner. If the PACE legislation is passed in Michigan it will drive economic development. Manufacturers will need to produce the supplies; local contractors will be hired to do installations. In 2007, $24 billion left the state of Michigan to pay for energy resources – coal, oil, natural gas, and uranium – that cannot be produced locally. Even a modest one percent increase in energy efficiency would keep $240 million in the Michigan economy annually, create thousands of jobs for Michigan workers and help our residents and businesses save money on energy.
Nearly a decade ago, the Dakota Minnesota & Eastern Railroad Corp. (DM&E) tried to build and upgrade a rail line between Wyoming and Minnesota. While I’m usually a big fan of trains, the problem with this project wasn’t the train itself, but what the train would be carrying. By design, it would carry 100 million tons of coal annually from Wyoming’s Powder River Coal Basin to the Midwest, enough to power about 50 average sized coal plants. The rail line was a key part of the infamous Bush-Cheney energy plan to increase coal production and utilization. When burned in coal plants, the coal carried by this rail line would have emitted approximately 200 million tons of carbon dioxide, along with mercury and numerous other air pollutants.
In one of my first energy cases with the Minnesota Center for Environmental Advocacy, we challenged the project on behalf of Minnesotans for an Energy-Efficient Economy (now Fresh Energy) and the Sierra Club. The federal Surface Transportation Board, when it approved the new rail line, performed an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA). The government’s EIS considered the many direct impacts of the rail line (noise, vibration, train engine emissions). However, it completely ignored the likely environmental impacts of burning the coal that the rail line was intended to carry, most notably carbon dioxide and mercury emissions. Our legal challenge thus became one of the first cases to raise the issue of indirect greenhouse gas emissions from federally approved and funded projects.
The court agreed with our arguments, and in Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003), the Eighth Circuit Court of Appeals vacated the government’s decision pending further environmental review. The case became a landmark decision requiring federal agencies to account for the indirect greenhouse gas pollution from major projects.
The federal government later issued a supplemental EIS, which was ultimately approved by the court in December 2006. But by this time, the tide was beginning to turn on coal plants. Demand for coal began dropping, as old coal plants were being phased out by environmental enforcement and new proposed coal plants were being stopped in a highly-effective national legal campaign. Last week, citing the lack of a “favorable regulatory climate” and a lack of financing, the company finally nixed the project. While the original case set an important legal precedent in the fight against climate change, this victory and the end of the project has real tangible benefits for climate protection. Without the new rail line, the coal (and carbon) will stay in the ground, significantly reducing our greenhouse gas emissions every year.
Earlier this week, the Ohio Court of Appeals drastically limited the public’s right to use Ohio’s Great Lakes beaches. In it decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the court held that public rights to Ohio’s portion of the Great Lakes extend only up to the water’s edge. As a practical matter, this means you have to keep your feet in the water or you’ll be trespassing. As a legal matter, this decision puts Ohio at odds with the vast majority of states (including Michigan) that recognize the public’s right to use shorelines up to the ordinary high water mark. Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and is authoring a forthcoming law review article on the subject. Ken is leading expert on this issue and provides the following analysis:
An Ohio appeals court ruled this week that the public has no right to use the Ohio shores of the Great Lakes above the water’s edge. According to the Ohio Court of Appeals decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the water’s edge – which can change moment to moment – is the boundary between privately owned lakefront property and state-owned lakebed in Ohio. While the state owns the lakebed in trust, the appeals court ruled that the public trust in Ohio does not extend beyond the water’s edge, and lakefront owners have the right to exclude the public from walking on or otherwise using privately owned shores of Lake Erie above the water’s edge.
The Ohio Court of Appeals’ decision contrasts sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords members of the public the right to walk along even privately owned shores of the Great Lakes in Michigan up to the ordinary high water mark. Although the Ohio decision recognized that the public has a right to walk on the lakebed, in effect the court said that the public must keep their feet wet when doing so.
The Merrill case was originated in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owns up to the ordinary high water mark along the Lake Erie shore and that lakefront owners must obtain leases from the state for certain uses of the shore below the ordinary high water mark. (The governor subsequently abandoned that position in 2007, and the state no longer seeks to require leases for privately titled lakefront property.) But while the case began as a dispute over title, also at issue was the public’s right to use the Great Lakes shores for recreational purposes. Yesterday’s opinion by the Ohio Court of Appeals for the 11th District largely affirmed a 2007 decision in the case issued by the Lake County Court of Common Pleas.
Acknowledging that the case was one of first impression in Ohio, the state Court of Appeals primarily looked to earlier Ohio Supreme Court cases and the state legislature’s use of the term “natural shoreline” in the Fleming Act (ORC §§ 1506.10 & .11) to conclude that the actual water’s edge serves as the line of demarcation between the lands held in trust by the state underlying Lake Erie and the private lands of the lakefront owners.
In my humble view, the court erred by not recognizing that the public trust extends to the ordinary high water mark on the shores of Lake Erie. As set forth more fully in my upcoming article, the shores of Lake Erie passed to the State of Ohio in trust up to the ordinary high water mark at the time it entered the union, and the General Assembly has not relinquished the public trust in the shores between the ordinary high water mark and the water’s edge. The public should have the right to walk along the shores of the Great Lakes in Ohio, just as they do in Michigan, up to the ordinary high water mark.
Last week, the Great Lakes Environmental Law Center joined with several local businesses in a lawsuit against the City of Ann Arbor over greenhouse gas pollution and other environmental impacts that will result from a massive new underground parking structure. The complaint also includes claims against the City for violating the Michigan Open Meetings Act with secret email deliberations and communications regarding the proposed $50 million parking structure. Further, because the City refused to disclose the full extent of these secret email deliberations and communications when requested by the Great Lakes Environmental Law Center pursuant to state law, the lawsuit seeks relief for violations of the Michigan Freedom of Information Act.
As detailed below and in the linked documents, the City made a decision to borrow $50 million for a parking structure that its own study concluded is not needed, ignoring the comments and concerns from the Chairman of the City’s own Environmental Commission that the parking structure would increase automobile pollution and greenhouse gas emissions contrary to the City’s own environmental policies, and the City Council made this decision with secret email deliberations in violation of the Open Meetings Act, then failed to disclose those emails when requested pursuant to the Freedom of Information Act. The dictionary definition for “boondoggle” may need to be updated to include this project and process.
The City Council approved bonding and construction of a massive new $50 million underground parking structure back in February, despite a 2007 study conducted for the City’s Downtown Development Authority (the agency that proposed the project and would operate the parking structure) which concluded that new parking is not needed. (Full disclosure: my wife is currently a member and the former chair of the DDA’s volunteer board, and voted against the parking structure.) The Ann Arbor Downtown Parking Study, prepared by the well-respected Nelson\Nygaard firm, concluded that: “Overall parking supply is sufficient to meet existing demand. The fact that utilization across the overall inventory fails to rise above 85% during peak periods indicates that overall supply is sufficient.” (Bold in original, see Phase I Final Report, at page 3-41.) Instead of borrowing millions of dollars to build a parking structure that’s not needed, the study recommended numerous options for the City that would be cheaper, less polluting, and better serve the City’s transportation needs, such as making the City more accessible for pedestrians and bicyclists, improving transit, and managing parking demand with market mechanisms. (These recommendations and many others are detailed in the Phase II Final Report, at pages 5-5 to 5-23.)
The City Council’s approval of the parking structure also ignored the comments, concerns, and recommendations made in writing by the Chairman of the City of Ann Arbor’s Environmental Commission. The Chairman’s comments to City Council were obtained through the Freedom of Information Act and are available as a scanned and converted document here. The Chairman of the Environmental Commission requested that City Council postpone its decision regarding the bonding and approval of the proposed new parking structure until the City properly considered the need for the project, the environmental impact of the project, and the range of less impacting alternatives to the project. It should be noted that the Chairman, Mr. Steve Bean, was speaking in a personal capacity and not on behalf of the City’s Environmental Commission, as the City Council never formally consulted with the Environmental Commission or sought the Environmental Commission’s input on the proposed new parking structure.
Environmental Commission Chairman Bean detailed in writing the potential for the project’s unnecessary and avoidable environmental impacts and raised numerous questions and decision-making criteria that warranted further study. Specifically, Environmental Commission Chairman Bean expressed his concern about “the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply.” He thus requested that City Council “postpone action on the proposed underground parking structure” to allow City Council to get “comprehensive” information on the City’s “parking availability data,” “parking demand management efforts,” and “the presumed need for the structure and possible alternatives before approving its construction.”
The City Council also ignored the City’s own policies and stated goals for reducing vehicle pollution and greenhouse gas emissions and totally failed to consider the vehicle miles and pollution that would be generated by the new parking structure. Using a conservative calculation based on survey data from the Ann Arbor Downtown Parking Study (Phase I Final Report, at page 3-52), the proposed structure will support 494,210 vehicle trips per year resulting in 6,770,677 vehicle miles traveled per year. According to U.S. Environmental Protection Agency estimates for average emissions from vehicles, the pollution from this increase in vehicle miles traveled will be 41,757 pounds of hydrocarbons, 311,690 pounds of carbon monoxide, 20,730 pounds of nitrogen oxides, and 6,201,940 pounds of carbon dioxide (the primary greenhouse gas).
This increase in vehicle pollution and greenhouse gas emissions is totally at odds with the City’s own adopted 2006 resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015. (See R-172-5-06, Resolution to Set Renewable Energy Goals for Ann Arbor.) The City has acknowledged that meeting this greenhouse gas reduction goal will require reducing vehicle miles traveled in the City. However, Ann Arbor’s State of Our Environment Report shows that total vehicle miles traveled are already increasing even without a massive new parking structure to bring more cars to the City.
Soon after the City Council approved the proposed new parking structure, the Great Lakes Environmental Law Center, Natural Resources Defense Council, Sierra Club, and several local residents (including experts in air pollution, public health, and urban development economics) sent a detailed letter to the City expressing both policy and legal concerns with the City’s decision. (See media coverage from the Ann Arbor Chronicle and the Ann Arbor News.) The Great Lakes Environmental Law Center also submitted several requests pursuant to the Michigan Freedom of Information Act, and that’s when things got really interesting, eventually exposing a troubling pattern of potentially illegal secret email deliberations by some City Council members, and the City’s failure to disclose these email communications as required by state law.
Requesting information pursuant to the Freedom of Information Act (FOIA) is standard procedure in public interest environmental work, as open government is critical to good environmental decision-making. The Great Lakes Environmental Law Center’s first FOIA request to the City, dated March 27, 2009, sought all records relating to the City Council’s approval of the parking structure and relating bonding and financing. The request specifically included “all e-mail communications … made by City Council members … during … City Council’s February 17, 2009 public meeting” (the meeting at which the parking structure and bonding were approved). On April 20, 2009, the City responded to the FOIA request with some documents, but denied access to others and completely failed to acknowledge the existence of many of the City Council members’ emails.
We suspected that there were more emails between City Council members, and made another FOIA request on April 23, 2009 for “all records produced, prepared, or otherwise created by Ann Arbor City Council members during the City Council’s February 17, 2009 meeting.” On April 30, 2009 the City responded by providing some (but still not all) of the City Council members’ emails, which began to show that City Council members were engaging in both substantive and non-substantive private email communications, using City laptops and email accounts, during the open public meeting. Specifically, several City Council members exchanged numerous email messages discussing whether they supported postponement (as requested by the Environmental Commission Chairman) and why other City Council members supported or opposed postponement. After determining through a private email discussion which City Council members opposed postponement and which members supported postponement (and why), and what a vote on the matter would thus likely result in, a motion for postponement was never brought or publicly discussed and voted on by the full City Council in open. The Great Lakes Environmental Law Center has scanned these emails and posted them online to make them publicly available. For a better read, the Ann Arbor Chronicle has detailed coverage of the email discussion, along with a thorough analysis of potential Open Meetings Act violations.
In addition to these substantive emails, our FOIA request also uncovered numerous emails between some City Council members showing unprofessional, disrespectful, and insulting comments regarding other City Council members and constituents. The Ann Arbor News covered these emails in two related articles (here and here) and in a scathing editorial and political cartoon. While the Great Lakes Environmental Law Center is only concerned with the substantive private emails concerning the parking structure, many voters were offended by the other insulting emails and general disrespect for the public and ousted one of the ring-leading incumbent council members in the primary election two weeks ago (see coverage from AnnArbor.com and this Michigan Daily editorial, "Corruption loses").
But that wasn’t the end of the private email scandal. Last month, we learned about numerous other private emails between city council members at the February 17 meeting regarding the parking structure that the Ann Arbor Chronicle obtained through FOIA (available here). These emails showed an even more egregious disregard for the letter and spirit of the Michigan Open Meetings Act, which requires that all deliberations by public bodies be done in the open. In one telling private email, sent from Council Member Leigh Greden to Council Member Margie Teall during the public meeting, Council Member Greden bragged “Isn't it nice when we script things?” We don’t yet know why the City failed to produce these emails to the Great Lakes Environmental Law Center but did produce them to the Ann Arbor Chronicle – just one of the many questions that may be answered in the litigation.
In addition to claims regarding vehicle pollution, greenhouse gas emissions, and violations of the Open Meetings Act and Freedom of Information Act, the complaint also raises claims of nuisance and trespass on behalf of local businesses that will be devastated by the construction of the massive underground parking structure, most notably the famous Herb David Guitar Studio. This Ann Arbor landmark has made, repaired, adjusted and sold instruments and accessories to John Lennon, John Paul Jones, Jerry Garcia, Carole King, Eric Clapton, and many other notable musicians. If construction of the parking structure moves forward as planned, the Herb David Guitar Studio’s historic property could be permanently damaged and the studio could go out of business.
While this project and process have not exactly been a model of rational, informed, and open government decision making so far (to put it mildly), I’m still hopeful that reason and good judgment will prevail and the City will work collaboratively with its residents, businesses, and concerned environmental organizations to move towards a modern, efficient, less costly, and more sustainable transportation system instead of simply building an expensive parking structure that’s not even needed. At a minimum, the City must reconsider its decision in light of the avoidable environmental impacts and public process abuses and ensure that neighboring independent landmark businesses are protected.
As the state of Michigan considers two proposals for huge new coal fired power plants, one of the central issues is whether the new coal plants are even needed. Governor Granholm has made clear in an Executive Directive that the state will use its authority under the Clean Air Act and the Michigan Environmental Protection Act to make sure the plants are needed before their harmful air emissions would be permitted. That determination of need will be very difficult in light of new report prepared for the Natural Resources Defense Council by Synapse Energy Economics, a premier energy consulting firm. The report, A Green Energy Alternative for Michigan, details how the state’s businesses and residents can save millions of dollars while avoiding the harmful emissions of new coal fired plants with energy efficiency and conservation. From the report:
Michigan is planning for its electricity future. The Michigan Public Service Commission issued an electricity plan in 2007 titled “The 21st Century Electric Energy Plan.” This Plan projected steady growth in electricity demand and anticipated a need for significant investment in baseload coal-fired generation. Such a plan might work in an era of steady demand growth, predictably low costs for coal-fired electric generation, and little concern over air emissions and global warming. However, that is not today’s world. Our analysis holds the following lessons for Michigan:
With this report, it’s clear that the state of Michigan does not need the proposed new coal fired power plants (or their air pollution), and given the state’s legal authority and duty to avoid unnecessary environmental harm from coal plants, the state should deny the permits and instead encourage energy efficiency and conservation.
Update: The Natural Resources Defense Council, Great Lakes Environmental Law Center, and numerous other environmental organizations have now filed comments with the Michigan Department of Environmental Quality on Consumers Energy's Electric Generation Alternatives Analysis filing. Our comments, based in part on this new report, demonstrate that Consumers Energy has failed to show the need for its proposed new coal plant.
The Michigan Supreme Court’s recent ruling in Henry v. Dow allows a class action of pollution victims against Dow to move forward if the trial court finds that the proper class action standards have been met. The case involves a plume of dioxin contamination from Dow’s Midland facility that has polluted property throughout the Tittabawassee River watershed into Lake Huron. (For more on the case, see this article by Eartha Jane Melzer of the Michigan Messenger.)
The Great Lakes Environmental Law Center and numerous other environmental organizations filed an amici curiae brief urging the Michigan Supreme Court to allow the use of class actions in pollution cases – a result that was achieved in the court’s ruling. By a 4-3 vote, the Michigan Supreme Court upheld the use of class actions, even when the specific harm suffered from pollution varies. Because it was not clear if the plaintiffs had met the standard for certification in a class action, the Supreme Court remanded the case to the trial court for factual findings, although the plaintiffs’ attorneys are confident that the standard has been met.
The three dissenting justices would have made it more difficult to bring a class action under Michigan law. They would have held that the issue of damages could not have been properly certified under any circumstances in this type of case. Fortunately a majority of the court recognized the importance of class actions in obtaining justice for pollution victims, as a class action allows numerous people to band together when the costs of litigation for an individual would be prohibitive. Government regulations should protect people from pollution, but when that fails, it’s important to be able to hold polluters liable for the damage they have caused.
The Minnesota court of appeals has affirmed the state agency’s issuance of a new ballast water permit, despite an environmental group’s challenge that the permit does not do enough to protect Lake Superior from aquatic invasive species. The Minnesota Pollution Control Agency’s ballast water discharge permit allows ships to delay new treatment technologies to prevent biological pollution until 2016, leaving Lake Superior vulnerable to more invasive species for another seven years. The Minnesota Center for Environmental Advocacy filed a legal challenge based on Lake Superior’s designation as an “outstanding value resource water,” which requires the state to protect the lake from “degradation” from new pollution threats. The Minnesota court of appeals, in a decision affirming the state’s issuance of the permit, acknowledged that the environmental group raised legitimate concerns about the general permit and the state’s approach to protecting Lake Superior. However, the court essentially deferred to the state agency’s technical expertise and legal interpretations, concluding that the issuance of the general permit was not arbitrary and capricious or an error of law (the legal standard that courts use in this type of challenge). Despite the legal setback, Minnesota is still putting in place a regulatory system for ballast water discharges in the Great Lakes (it’s just not as strong or as immediate as it should be), putting more pressure on the industry and federal government to finally address the problem of aquatic invasive species.
The National Wildlife Federation’s recent report, Protecting and Restoring the Kidneys of the Great Lakes: An Assessment of Wetlands Programs in Michigan, Minnesota, Ohio and Wisconsin, has reinvigorated ongoing efforts to improve wetland protection in Michigan. Michigan is one of two states that has a federally delegated wetland protection program, but for budgetary and political reasons the state is considering dropping its wetland protection program, leaving only the federal government to do the job (and to manage all of the permit requests).
While the Great Lakes region has lost over 50 percent of its wetlands (and some coastal areas of the Great Lakes have seen 95 percent declines), NWF’s report offers numerous recommendations to change this trend and better protect Great Lakes wetlands. For starters, Michigan must continue its state wetland protection program, and strengthen it with more funding and resources for assessment and enforcement. Michigan should also modify or eliminate the statutory exemption language for small isolated wetlands (wetlands less than five acres in size that are not contiguous to a body of water), as these wetlands are critical for preventing runoff pollution and protecting water quality.
As the debate over wetland protection in Michigan heats up, the conservation community is taking their research and message directly to the public, demonstrating the importance of Michigan’s wetlands for both our economy and the health of the Great Lakes in a series of Detroit Free Press opinion columns:
This policy work and public outreach should convince Michigan’s political leaders to continue the state wetlands program and not leave it only to the federal government to protect one of our state’s most important natural resources. Instead, Michigan must strengthen its wetlands program as a key component of protecting and restoring the Great Lakes.