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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.

New river protection regulations on the way?

14 Feb 2014

After the non-stop coverage of the spill into the Elk River in West Virginia, we are seeing reports of a spill of 82,000 tons of coal ash into a North Carolina river. The subject of coal ash has lain dormant for a while but this Duke Energy spill is like opening an old wound.  As our regular readers know, EPA has proposed new rules for coal ash storage in the wake of a  Tennessee spill in 2008.  There was another spill in Wisconsin in 2011 and the rules languished. Given this week’s coal slurry spill in West Virginia, rivers in the southeast might be feeling like endangered species.

This fall, a citizens suit was filed in West Virginia federal court (unrelated to the Elk River case) and at the end of January, the EPA agreed to issue coal ash rules by December 19th of this year. Whether the rules treat coal ash as a hazardous waste, a non-hazardous waste or some combination of the two, remains to be seen but it appears that some regulation of this reportedly second largest waste stream in the country will be implemented.  As I have blogged before, Michigan already has more river-protective regulations than many other states and it is about time that these other states are brought up to a higher standard to prevent these major spills.

We have started to realize just how important our rivers are and whether it’s bad luck or bad stewardship, we appear to be on a path to get the regulations needed to protect them.

Water, water everywhere.

29 Jan 2014

Picture006Did you ever think about where your water comes from and what may be in it?  I have a good friend who never thought about the fact that there was a finite amount of water and that certainly some of what came out of his tap had, at some point, likely passed through someone else’s bladder. What that means is that treatment of wastewater has an impact on drinking water quality and the public health.

We’ve recently learned that the DWSD and the local counties have been trying to work out a deal to “regionalize” the Detroit Water System – thus far – to no avail.  Also, just this week, rumors have surfaced that the DWSD may be cutting 40% of its staff – a reorganizing of the system which, if successful, could lead to lower operating costs, lower borrowing costs and may make a multi-county regional deal more likely. If not, the system could be back in trouble.  There have also been rumors of a possible sale of the system or that the Detroit Emergency Manager might strike some sort of deal without Oakland and Macomb counties – which hold many of DWSD’s customers.

This is a big deal because the DWSD supplies drinking water to 126 communities in southeast Michigan, other than Detroit, serving roughly 40% of the state’s population.  The system is one of the Country’s oldest, dating back to the 1830’s and the infrastructure issues involved are huge, given that the system has five water treatment plants treating water from two intakes in the Detroit River and a third in Lake Huron. As we reported earlier, because the DWSD was able to achieve compliance on the other *ahem* end, it was finally let out of what was then one of the oldest ongoing lawsuits in existence.

However, wastewater treatment plants (which discharge treated sewage) don’t always clean everything out of the water and that failures to catch chemicals like pharmaceuticals, can have impacts downstream.  Sometimes, the chemicals get caught by accident without the operators even knowing it! A draft MDEQ report also tells us that there are problems in Michigan’s rivers (some of which may have been there all along and better testing is just now bringing it to light) with higher levels of pathogens of the sort our sewers and septic systems are supposed to eliminate.  While the City’s drinking water meets federal and State standards, those standards don’t test for everything that winds up in the water.  We’ve come along way from the 1969 fires on the Cuyahoga and Rouge Rivers, but we’ve still got a long long way to go.

As far as drinking water, one hopes that the treatment deals with every possible chemical and pathogen but we know that it does not. With a need for infrastructure upgrading and impending staffing cuts, the time seems right to strike a regional deal that benefits everyone in both the short and long terms. Let’s hope the region can pull this off. Sound water and wastewater systems are important for both our health and our economy.

What will be the top green stories of 2014?

8 Jan 2014

greatlakesAs this new year kicks off, we thought we’d look ahead at what we think may be the big stories of 2014 at MichiganGreenLaw.com, in no particular order:

Wetlands – Will EPA and the Army Corps of Engineers finalize guidance regarding the scope of waters regulated under the Clean Water Act? Or will there be new rules or even new legislation?  There are members of Congress on  both sides of this issue and it is unclear which way this issue will go, although the federal trend is to try and govern as many bodies of water no matter what. This fall, EPA published a draft connectivity analysis which many view as a prelude to new regulations attempting to vest the federal government with broad jurisdictional over virtually every drop of water in the country. It will be interesting if the federal government tries to delete the “significant” portion of the Rapanos “significant nexus” test.

• Hydraulic Fracturing –  this continues to be a lightning rod for controversy.  At the end of 2013, the Associated Press reported on both alleged and confirmed environmental problems in 4 states including Ohio and Pennsylvania.  Michigan looks to beef up its oversight of, and its communications regarding, fracking proposals and operations.  The University of Michigan continues to study the technical issues.  The focus on this issue seems to be shifting toward the volumes of water used in fracturing and monitoring withdrawals used for oil and gas production. It appears that the 2012 U.S. Department of the Interior draft rules for fracking on federal and Indian lands remain draft – will they ever be finalized?

• MDEQ Brownfield Process Streamlining.  MDEQ has promised to convene a short-term task force to work on harmonizing, improving and streamlining the various funding mechanisms currently used to incentivize brownfield redevelopment. This can only be a plus.

• MDEQ Cleanup Rules – as required by the Legislature, MDEQ proposed adopting its previously informal standards as formal cleanup rules late in 2013.  The MDEQ will continue to work on improving and in some cases broadening its cleanup rules and criteria – we expect more work on the assumptions of exposure underpinning the standards, more work on vapor intrusion standards and more work on standards and processes applicable to groundwater venting into surface waters.  MDEQ also continues to discuss more rules and standards defining what constitutes “due care” which is an issue for property owners who are not liable pursuant to a BEA and for other reasons.

• Keystone Pipeline.  As we predicted, President Obama and Congress continue to be locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  The President deferred it and lately the pundits have argued that pipelines are safer than transporting shale oil by truck and train.

• Energy Policy In Michigan – at the end of the year, and after a year of “listening” sessions and collecting information, Governor Snyder indicated that he intends to seek legislation improving Michigan’s energy policies, focusing on lowering costs, improving reliability and minimizing environmental impacts.  This will be interesting.

Conservation, the Circle of Life and my Backyard

6 Dec 2013

This week’s Time Magazine had an interesting article regarding the “rebound” of animal populations, positing that increased hunting was necessary to prevent disease, starvation and problems between man and beast.

Clear cutting and development between 1850 and 1950 dramatically reduced animal populations.  More pro-conservation practices since 1950 have helped to foster a dramatic restoration of animal species, only now they’re living in our backyards – in some cases, literally (I took the photo of this deer in my backyard, this week – there were actually two, I just wasn’t fast enough to get them both in the photo).  Wetland and woodland preservation, inclusion of natural areas in development, poor garbage control and use of fruit trees (we have a cherry tree and crabapple trees) have fostered a symbiotic relationship leading to a suburban wildlife population.  This summer, we saw a redtailed hawk catch a squirrel and land right in front of our neighbor’s house.  These sightings and the problems that come with them were unknown in the inner-ring suburbs of the 1960’s.

While I won’t repeat all the statistics here, a Penn State Study noted that in 1900, the entire US whitetail deer population was estimated at 500,000.  It is now over 15 million!

According to the MDNR, in 1914, it was estimated that there were only 45,000 deer in Michigan and so regulations were changed to allow hunting of only antlered deer.  As a result, the deer herd began to rebound.

The State’s deer herd peaked at about 1.5 million deer in the late 1940s.  The State developed a Deer Range Improvement Program (DRIP) and a goal of 1 million deer. A combination of factors resulted in the population shooting past that goal to 2 million deer in 1989.

Crop damage, herd distress and deer-vehicle accidents increased (a point of the Time article) and the State has worked toward a population of roughly 1.3 million deer in the fall herd. As anyone who has lived in Michigan for some time knows, there is a significant culture of hunting that helps to maintain the deer population size. The Time article notes that other states across the country are starting to get the idea to allow hunts for bears and other animals whose populations have begun to explode to levels unseen in the last 100 years and are living in closer proximity to humans than ever before.

The Center of the Blue Economy

8 Nov 2013

 

Astronaut Karen Nyberg tweeted this photo of Michigan and the Great Lakes from aboard the International Space Station on Oct. 13. (Courtesy Photo | Karen L. Nyberg)

The Governor’s office recently requested a White Paper relating to the so-called “blue economy.”  We here in Michigan have always known about our Great Lakes (and yes, I know they don’t belong to Michigan but they define us – if you don’t believe me – see the photo).

The White Paper was released this week and it notes what most of us would think of as the big four uses of water here in Michigan:

  • farming;
  • factories (energy);
  • shipping; and
  • leisure use.

The White Paper recognizes these (noting that water is responsible for nearly a million jobs and $60 billion in the Michigan economy) and also discusses water technology businesses, water research, modeling sustainable water uses and making water a long-term platform for sustainable growth.  The thought that Michigan with its abundance of riches (20% of the world’s fresh water!) is pursuing businesses and policies that will be based on the scarcity of clean fresh water is impressive as it normally seems that places without much water focus on shepherding it.  The focus on innovation, research, manufacturing and entrepreneurship is refreshing (perhaps a tad late, as other states and Canada are also focusing on this).

Also interesting to me is the White Paper’s silence on hydro-power or wind-power driven by the lakes (although that may be the focus of another of the Governor’s initiatives – a point I will discuss in a later blog post).

There is a delicate balance between the various uses of the Great Lakes and concerns regarding lake levels and invasive species that often pits farms and factories against shippers and against leisure users of the lakes.  I commend the Governor on beginning the process and trying to focus businesses and researchers on something that we here in Michigan often take for granted because of the abundance of riches we have.

Invasive Species and Unintended Consequences

12 Jul 2013

One action begets a reaction and another and another

Before I took off for vacation, I decided to finish reading 1493 which may be the most thought provoking book on invasive species I’ve ever read.  Author Thomas Mann takes a look at the last 500+ years of world history, economics, anthropology and environment and explains using interesting vignettes how the world we live in is not anything like the world of 1491.

He discusses topics like:

  • malaria and its relationship to the US slave trade;
  • sugar, silver and trade with the far east;
  • how South American potatoes and fertilizer revolutionized Europe and;
  • once the “eggs were all in the basket,” how European farming practices made almost inevitable the potato blight that virtually depopulated Ireland in the mid 1800’s.

He raises many interesting questions, some of which are still being asked today, as in this article regarding the popularity of the “superfood” quinoa as “gentrifying” or changing the South American farmers who used to eat it as a subsistance food.

A fascinating book which raises almost as many questions as it answers and shows how human actions – sometimes on purpose and sometimes not, have resulted in ecosystems (as well as economic systems) which are entirely foreign to the lands they occupy today.  We’ve blogged about Asian Carp and many of us are aware of invasive species like kudzu and purple loosestrife. But I never thought of wheat, onions, earthworms, potatoes, sugar, bananas and horses as invasive species.  I highly recommend this book.