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What will 2017 Bring? Dramatic Change?

20 Dec 2016

edit_calendar_ssk_47433454In prior years, we knew that regulatory and environmental change was coming but we expected it to be slow and incremental.  With an unknown quantity like President Elect Trump, one thing is clear – no one really knows what may happen.  Here are a few possibilities:

1.  Coal/Cleaner Energy Generation – revitalizing the coal industry was part of Mr. Trump’s midwest stump speeches.  Will Mr. Trump be able to reverse Barack Obama’s Clean Power Plan? What about the Paris Climate Accord?  Certainly, his team is looking at both of those right now. The dispute in Michigan v. EPA, decided in June 2015, continues to rage.  In 2015, the US Supreme Court ruled that the EPA didn’t properly justify its rule governing mercury and toxic pollution (MATS) from power plants because it did not specifically address costs at the initial stage of the rulemaking process. In April, the EPA announced it was standing by its MATS rule and concluded that the benefits far outweighed the costs.  Petitioners continue to litigate whether the EPA properly evaluated costs.  Here in Michigan, new legislation has been passed (and is awaiting the Governor’s signature) intended to encourage additional investment in energy generation and transmission while balancing consumer choice and a greater percentage of renewable energy generation.  Will it work? At a reasonable cost?

2. Power Generation Subsidies/Oil/Gas Generation – Mr. Trump’s attacks on “crony capitalism” would seem to mean that he will stop financial incentives for solar and wind generation.  Will he also attack oil and natural gas supports in the tax code?  Will he open up ANWAR to oil/gas exploration?  Will he scale back attempts to regulate fracking?  This will be difficult in light of the December EPA Report  which concluded that fracking posed problems such as:  fracking water withdrawals compete with other water needs; spills of hydraulic fracturing fluids and chemicals or produced water may impair groundwater resources; injection of hydraulic fracturing fluids into wells may allow gases or liquids to move to groundwater resources; discharge of inadequately treated hydraulic fracturing wastewater to surface water resources; and contamination of groundwater due to disposal or storage of fracturing wastewater.

3. Pipelines – will Mr. Trump reverse the Obama administration’s dim view of oil and gas pipelines such as the Keystone XL and Dakota Access Pipelines?  How will this affect Michigan where public awareness of two 60+ year-old pipelines under the Mackinac Straits has galvanized both sides of the political spectrum into action.  In 2014, Michigan convened a pipeline task force which issued a report in 2015.  In September, 2015, the State entered into a written agreement with Enbridge to prevent the transport of heavy crude oil through the Straits Pipelines.  The task force also recommended that the pipelines be independently evaluated and that additional financial assurance be provided.  The State solicited Requests for Information and Proposals (RFPs) and Enbridge agreed to pay $3.6 Million for the evaluation of the Straits Pipelines.  An independent evaluation of alternatives to the Line 5 pipelines is also underway.  When those will be completed is not known.

4. Infrastructure – Mr. Trump campaigned on infrastructure (although to hear him tell it, that only encompasses airport quality), and Governor Snyder appointed a 21st Century Infrastructure Task Force which concluded that the State needed to be investing $4 Billion more than it was in infrastructure to address roads, bridges, internet, water, sewer and other infrastructure needs.  Given the recent nationally publicized Flint Water debacle, will Michigan find the intestinal fortitude to fully invest in infrastructure or will we continue to patch and delay?  Given the State’s recent fight against a federal judge’s order to deliver clean water, and Michigan legislators “default anti-tax setting,” the future does not bode well.

5. Brownfields – as previously reported, Michigan adopted legislation streamlining its brownfield funding laws and deferred action on Dan Gilbert’s “transformational” brownfield funding legislation.  Will that resurface in early 2017?  I expect it will.

6. Other issues – there are a number of other issues on the horizon including cleanup standards, the maturing of the Great Lakes Water Authority and its ability to deliver clean water and septic services at a reasonable price, Michigan’s effort to reimagine its solid waste program, water withdrawals and protection of the Great Lakes from invasive species and nutrients leading to algal blooms.

Protect the lakes – don’t flush your medicines – here’s how

24 Jun 2016

A few y13445475_10208142314013787_6103794917851915726_n (1)ears ago, the University of Michigan confirmed that it is a bad idea to put old medicines down the drain.  The State of Michigan agrees.  Here  is a link to the MDEQ’s website on this topic.  There have been concerns regarding the impacts of pharmaceuticals on wildlife, as most wastewater treatment plants are not designed or equipped to treat for medicines.

A few years ago, we had to rely on special programs to properly dispose of old medications,  but while recently helping my father-in-law, I learned that there are many more local drop off sites than before.  Here is one website that you can use to locate take-back locations. The Michigan State Police are now taking back medications at their 29 posts. The Oakland County Sheriff has launched Operation Medicine Cabinet with 33 locations across the County – these will accept all dry medicines.  If you have to put medications in the trash, here are instructions on how best to prepare them for disposal.

Why is flushing medicine a bad idea? The UM report talks about creating antibiotic resistant superbugs and there have been other reports about hormonal changes in fish, and finding traces of various prescription substances in drinking water (yes, what we flush can wind up in someone else’s drinking supply).

Earth Day 2016 – hopefully this year will be better

22 Apr 2016

NASA_Earth
On this, the 46th Earth Day, I have reflected on both how far we have come and how much further we have to go.  Certainly, our waters and air are cleaner than they were in 1970. Our energy and cars are cleaner as well. However, the environmental challenges our society now faces are more complex and more granular and, therefore, harder to “solve.” Think about algae in Lake Erie and invasive species throughout our lakes and lands – those are much harder to deal with than a handful of industrial polluters.

Given the events of the last year in Flint, Michigan has become the country’s “canary in a coal mine” with respect to lead. More people are talking about lead and know about it than literally ever before.  When John Oliver spends 18 minutes on it on HBO, you know it is permeating the nation’s consciousness.  In some cases, it is possible we are focusing too much on water and not enough on paint and dust.  Despite the political posturing and the recent criminal charges, I do expect that the politicians and regulators will, in the near term, step up  and we will see greater action on lead removal and protection. Unfortunately, that has been the pattern – major environmental problems result in new environmental initiatives.

Unfortunately, the Flint crisis is likely to delay, perhaps indefinitely, the State’s efforts on developing a Michigan energy policy and, despite his recent letter to State employees, regulatory paralysis will likely reign in Lansing. It is difficult to see State agency employees taking anything other than the most conservative of positions to avoid falling prey to the kinds of problems that occurred in and from the Flint crisis – criminal charges have a way of focusing the mind.

The lack of: (i) an energy policy; (ii) a current solid waste policy; and (iii) a fully funded sustainable program to support brownfield redevelopment (although long promised legislation on brownfield incentives was recently introduced) coupled with the greater focus on petroleum transport via pipeline, particularly, under the Great Lakes, makes me wonder how things will look here in Michigan on the next Earth Day.  Michiganders have always had a healthy respect for our environment – we were among the first in the nation to protect wetlands and waters – the 1950’s vintage easement on pipeline 5 under the straights of Mackinac was cutting edge in its time.  Will Michigan resume its previous environmental leadership or will we continue to struggle as we have for the last few years?  Being in a negative national spotlight is not something any of us sought but now that we’re here – perhaps it is time to step up and take a leadership role on the environment as we once did.  It will cost money and effort but the results – our health and the health of the environment are worth it.

Dire Straits – Crude Oil under the Great Lakes – what will the Courts do about a 61+ year old pipeline?

2 Oct 2015

pipelineEnbridge (the operator of the pipeline that leaked into the Kalamazoo River in 2010) has been assuring the State that there is no reason to worry about its pipelines under the Straights of Mackinac.  A 2014 University of Michigan report concluded that because of mixed currents, within 20 days of a spill from one of the two pipelines, oil would cover a roughly 50 mile stretch between Beaver Island in Lake Michigan to the West and as far Southeast as Rogers City in Lake Huron.  This news catalyzed an effort by the State to review its 62 year old agreement allowing the two pipelines which reportedly carry some 23 million gallons of oil under the Straits of Mackinac each day.

In June a state panel issued a 64-page Michigan Petroleum Pipeline Task Force Report which expressed unease with Enbridge’s assertion it could use the pipelines forever.  The report concluded that the Task Force had “inadequate information at this time to fully evaluate the risks.”   The Task Force recommended independent studies of the risks, alternatives for the safe transport of oil, and an accounting of the costs of responding to a spill from Enbridge Line 5 (the pipelines that flow under the Straits.

It seems as if Michigan’s regulators are not so willing to take Enbridge at its word.  The Attorney General has begun asking Enbridge for documentation and re-requesting when he does not get everything he asked for.  Enbridge appears to have jumped at the change to sign an agreement not to pump heavy crude (the problem in the 2010 spill) through the Straits without giving the State 180 days notice. This cost them nothing as they weren’t using the pipelines for heavy crude and had no plans to do so.  This gave the Task Force the chance to check the first item off its “to do list.”  Enbridge also rushed into place a “dress rehearsal” for a spill which made the front pages of the newspapers. Of course, this exercise was planned and Enbridge’s vendors themselves admit that in some cases equipment would have to be brought from Detroit – a 5 hour car trip in good weather.

While the federal government largely controls pipeline operations, the State’s negotiators in the 1950’s did an OK job with the easement they drafted (see here). The easement has some shortcomings like a bond of $100,000 and a flat insurance amount of $1 Million and no reopeners for changed regulations but it also requires the pipeline to “eliminate any oil or substance which may escape” from a leak or break and to indemnify the State from all damages or losses and the insurance required must be acceptable to the State covering the pipeline’s liability.  Particularly in light of the recent Volkswagen environmental scandal, it seems as if Michigan is taking its environmental stewardship of the Great Lakes even more seriously than usual.  The problem is that unless there is some evidence of a breach of the easement’s standards (as has been alleged regarding the spacing of the pipeline supports) or an imminent threat of a release, there isn’t much that State regulators can do.

While the easement gives the State some say over what Enbridge does, ultimately,  Michigan and federal law will  apply.  As noted by the Task Force, Michigan law gives the State a lot of power after there’s been a spill from a pipeline but not nearly as much over a threatened spill.  The law allows the State to step up and deal with a “threat of release” but there are precious few cases explaining what that means.  When dealing with a “threat” – even one with consequences as potentially huge as a release into the Straits of Mackinac, the Courts have demanded  quite a bit before granting any sort of injunctive relief.  It’s fair to say that unless the pipeline actually begins to leak, there is almost nothing the Courts will do under Michigan law except to hold Enbridge to the somewhat vague terms of a 60+ year old easement.

 

 

CSI Part II – MDEQ rolls out brownfield tax increment financing proposal – five major changes you should know about

11 Nov 2014

moneyAs you may recall from this spring, I was asked to serve on MDEQ’s initiative to  review and improve the “patchwork quilt” of statutes and rules regarding brownfield redevelopment incentives, grants and loans.  A CSI II group (of which, in full disclosure, I chaired the Legislative Committee) met regularly over the Spring and Summer and MDEQ has announced two meetings (see the attached flyer) to roll out the proposed changes. These changes have not yet been introduced in the Legislature and thus, are currently only an MDEQ internal recommendation. The hope is that these changes will be introduced shortly.

if passed, these proposed changes should streamline, simplify and speed up the process for loan, grant and TIF approvals to enable projects to get started faster than ever before while supporting a greater range of eligible activities than previously available.

There was some tension between those championing redevelopment and those focusing on environmental remediation but ultimately, there was agreement on a set of changes and clarification of the rules and statutes to clarify the process for obtaining loans, grants and tax increment financing for brownfield redevelopment.  The five most significant changes include: (more…)

Michigan Pipelines Under Review

29 Oct 2014

pipeline

Spills from pipelines were very newsy over the last couple of years.  There was the Kalamzoo River oil spill and a number elsewhere.  As with most things, eventually the public and news media tire of it and move on to something else.  A recent Indiana spill into Lake Michigan barely made any news.  Interestingly, this summer, the State of Michigan created a Michigan Petroleum Pipeline Task Force to review issues relating to pipelines transporting petroleum products around the State.  Despite federal jurisdiction by the  federal Pipeline and Hazardous Materials Safety Administration, the Task Force is looking at issues including:

  • Michigan’s emergency management preparedness for spills,
  • Coordination of permitting issues for pipeline upgrades and replacement, and
  • The creation of a state website to serve as an information clearinghouse for residents who have questions or concerns about pipelines.

The Task Force’s members are Co-Chairs: Dan Wyant, Michigan Department of Environmental Quality and Bill Schuette, Michigan Attorney General, and John Quackenbush,  Michigan Public Service Commission, Keith Creagh, Michigan Department of Natural Resources, Jon Allan, DEQ’s Office of the Great Lakes, Kirk Steudle, Michigan Department of Transportation and Col. Kriste Kibbey Etue, Michigan State Police.

As Michigan is looking at pipeline risks and preparedness, so should you.

(more…)

What is a 100 year rain anyway?

14 Aug 2014

Anonymous_two_red_diceAfter the recent flooding, news reporters came out and pronounced Monday a “100 year rainstorm.”  What does that mean anyway?  Is this mere hyperbole, like “trial of the century”?

The term has a specific impact for both insurance purposes and for planning.  Your flood risk determines whether you should buy (or whether you are eligible for) flood insurance.  And I assume that, as to sewer backup insurance (there is such a thing), it also affects your rates.  So, given that we’ve had rain storms in Detroit of over 4 inches 4 times over the last 100 years, what is a 100 year storm?

A 100 year rain storm (like a 100 year floodplain) does not mean that it happens only once every hundred years but rather that, statistically, planners believe that there is only a 1% chance of it happening in any one year.  Think about rolling a die.  If you roll a 3 four times in a row (assuming the die is fair), when you roll it a 5th time, its chances of coming up a 3 (or any other digit) is still 1 in 6 or 16.7%.  Weather is a bit more subjective and variable than rolling a die or flipping a coin but the same concept applies. (more…)