The law and the Great Lakes: Respect for the value of conflict

Gary Wilson

Commentary

A press release announcing a lawsuit by a non-profit group in Michigan caught my attention a few weeks ago.

Michigan Land, Air and Water Defense is suing the state Department of Natural Resources over an auction of mineral rights that could allow hydrological fracturing – fracking – under certain state parks and recreation areas.

My initial reaction was, “OK, good for the anti-fracking group.” Then I thought I should check the facts before jumping to a conclusion. Not all suits are appropriate or necessary.

Beyond that, I started to think about environmental lawsuits in general.

Are they still viable as a strategy to protect the environment? Or are they old school thinking? Can’t we just collaborate our way to a better environmental quality of life?

That seems to be the preferred path of the current generation of leaders of the big environmental groups in the region.

Watching the watchers

Big questions, so I turned to experts  – attorneys in environmental law trenches.

“The goal should always be to avoid litigation, if possible” says Nick Schroeck, director of the Great Lakes Environmental Law Center at Wayne State University. Lawsuits should come into play when regulating agencies “totally miss a key issue… or ignore pertinent comments” during a permit process.

But “we need to watch the watchers” and often state and federal agencies are not held accountable for lax enforcement,” he said.  Schroeck cites the lack of public interest attorneys as the problem.

A similar view was expressed by noted Michigan environmental lawyer Jim Olson from Traverse City.

“Lawsuits are part of our heritage… and the last resort when cooperation fails,” Olson says. “Or when democracy makes a wrong turn… people can call on the courts.”

He also points out that legal action brings the critical ability to cross-examine. Significantly, Olson emphasizes that it’s important to “respect the value of conflict.”

If Olson’s name sounds familiar it’s because he is the attorney who fought and won significant victories over Nestle Water in Michigan over its water-bottling operation.

His firm represents Michigan Land, Air and Water in their mineral rights action against the Michigan DNR.

Hold the frivolity

Both attorneys made the case for using legal action as the last resort. I support that position. No one should run willy-nilly to the court house with frivolous cases.

But I do sense a degree of legal passivity on the part of Great Lakes activists. They’ve essentially been on the sidelines in two of the biggest legal questions the Great Lakes have faced in recent years.

The corporate taking of groundwater where Olson and his micro-small client, Michigan Citizen’s for Water Conservation, got no help from big environmental groups in the Nestle battle according to the authors of Thirst: Fighting the Corporate Theft of Our Water.

One possible reason the authors cite is that the big groups may have been worried about alienating funding sources “who have avoided confronting questions of corporate power.” Too bad as the case  seemed tailor-made for environmental collaboration: Big international company taking Michigan groundwater. Grassroots group with bake sale resources fights back.

Activists have also sat out Michigan’s (and four other states) Asian carp legal fight against the Army Corps of Engineers and greater Chicago’s water district over Chicago’s waterways system. They don’t think there’s a likelihood that Michigan will prevail at the law, which may not be Michigan’s end game anyway.

Instead they’ve tried to work with the executive branch and Congress, but three years later they have nothing to show for their efforts. Michigan’s suit continues.

Back to Wayne State’s Schroeck. He says that state laws implementing the Great Lakes Compact are on the horizon as they “lack real conservation and efficiency measures.”

Ohio’s water conservation law could be a late night talk show laugh line, it’s that bad. But the other Great Lakes states also lag with Compact compliance. Given the current mindset in Ohio that water is a marketing tool for business, a legal path may be the only path to compliance.

There is no single road to success when it comes to implementing and enforcing environmental laws. Collaboration and negotiation play an important role, but when those tools don’t work legal action is the recourse. There should be no fear of using it. To do anything less is fighting only half the fight.

Remember, it’s important to have “respect for the value of conflict.”

17 thoughts on “The law and the Great Lakes: Respect for the value of conflict

  1. Pingback: COMMENTARY: The Law and the Great Lakes: Respect for the value of conflict | Great Lakes Phragmites Cutter

  2. Curtailing citizen standing in environmental litigation is just what corporate AmeriKa wants. This is just another of many rights that we are losing as corporations buy their way to complete control of our nation. We are fast approaching a 1890s state of affairs in America.

  3. It looks like it has to be a law suit for my cause. I can prove my case in court, I would like to gather some plaintiffs that care however, I can also use an environmental philanthropist. Give it a read at http://www.bantheboom.com Thanks. Joe Barrett

  4. I’m encouraged and surprised to see the comments on “standing,” the term for who is legally entitled to file a lawsuit. It’s of critical importance.

    A recent example may be Ohio’s Great Lakes Compact implementation law that limits “the right of aggrieved citizens to appeal a (water withdrawal) permit,” according to the Ohio Environmental Council.

    I’ll leave it to the lawyers to parse if that is a “standing” issue at the law. But it’s important nonetheless.

    Attorney and citizen comments welcome. (Not that attorneys aren’t citizens.)

    Gary Wilson

  5. The following comments are from Michael Dettmer, an attorney from Traverse City, Mi. They are posted with his permission. Gary Wilson

    —————————–

    My observations go beyond the environmental movement and its legislative history of recourse. What should be disconcerting to our society and to watchdogs of all vents, is the death of the American trial itself. I do not hold myself out as a student of this history but from experience, I suggest its demise started in the Regan era and by the late 1990’s, the concept of civil jury trials and more importantly, civil trials, environmental and otherwise that were actually heard and decided by juries has become nearly nonexistent. In the jury’s stead came the myriad of alternative dispute resolution programs– arbitration, mediation, case evaluation, summary trials and judicial novelties of every sort, all with a common theme that compromise and acceptance of half the apple was the better course then the risk of no bite at all.

    Unfortunately, we are now nearly 25 years from this 80’s-90’s history and the reality of the American jury trial is in fast decline. Why? It is not necessarily for the reasons commonly given – cost and time. What I sense is this present and more importantly, coming generation of lawyers simply do not have the skill to try lawsuits. They do not have the skill because they have not had the opportunity to gain the experience to win and lose in a courtroom, to judge and assess the risk of weighing evidence and the burdens of proof. But even more disconcerting and something I am now just appreciating is these generations of lawyers are now becoming trial judges. It is one thing to observe the loss of trial experience as our generation dies off and retires. It is far more significant that even if, for instance, environmental stakeholders and activists moved to a litigation option, their judicial reception may not only be unfriendly but may simply turn into a procedural disaster if the judge can’t find or control his/her own courtroom.

    I mentioned to you the book by Northwestern Professor Robert Burns, The Death of the American Trial. He captures the loss of this institution and his observations should be more widely disseminated. When Gary observes, “There is no single road to success when it comes to implementing and enforcing environmental laws. Collaboration and negotiation play an important role, but when those tools don’t work legal action is the recourse. There should be no fear of using it. To do anything less is fighting only half the fight.” Well said, but I sadly counter, what if the option of legal recourse is gone?

  6. Pingback: Some Discussion Of Environmental Litigation In Michigan | The Penn Ave Post

  7. The narrowing of standing under the Michigan Environmental Protection Act by the Republican-controlled Supreme Court was not a matter of “interpretation”–it was legislating from the bench, the very type of judicial activism that these hypocrites pretend to decry. Although I greatly respect and admire the work of Jim Olson, I have to disagree with his assessment of this ruling, if only from a personal perspective. In the 1970s, I was involved in one of the first MEPA cases against a major corporation. The MEPA case gave us the leverage to work with the corporation so that we reached a court-approved settlement. Under the present Supreme Court “interpretation”, we simply would not have had standing to sue, as the legislation clearly intended.

  8. The comments from Jim, above, are from Jim Olson – the attorney quoted in the commentary.

    Gary Wilson

  9. Gary, I am the poster boy for this situation exactly! I’d like to offer up my story and everybody is free to watch the video of me telling the Head of the New York Power Authority all of the problems I have connected to the use of their “Ice Boom”. Just Google Joe Barrett/ ice boom and there is a 6 minute lashing I gave the heartless giant that answers to no one. They may as well have not been in the room. They did nothing and answered nothing. They in fact moved the license date up by 5 months and put an end to public input. The Federal Energy Regulatory Commission totally dropped the ball and the International Joint Commission was a joke at best, criminal at worst. When this story is finally given the coverage it deserves, seeing how it represents 2/5th of the Great Lakes and the Niagara River and most likely the St.Lawrence Seaway, people will be shocked at the cavalier attitude our local representatives showed when it came time to re-license the Hydro Power Plant in Lewiston.

  10. I should add, on the Michigan Environmental Protection Act. In most cases, it has not been weakened, not since the Michigan Supreme Court reaffirmed it in a 1998 case. Yes, standing was narrowed, but not to the point where citizens and organizations with members who have a distinct use or enjoyment and interest that is threatened cannot bring suit to prevent environmental degradation and protect the air, water, natural resources, and public trust in Michigan. Every major case in the last 14 years has succeeded in one way or another based on MEPA, despite the standing problem. Moreover, the Lansing School Board case impliedly reversed the NWF v Cleveland Cliffs and MCWC v Nestle narrow standing decisions; and even those cases left room for plaintiff citizens to file MEPA cases.

  11. Thoughtful editorial, Gary, and much more to discuss about the question you have raised.

    I remember years ago, speaking on a panel at University of Michigan program on finding common ground between consevationists and corporations. Everyone urged a new positive approach to resolving these conflicts, and it was indeed encouraging, thinking every conflict over air, water, human health didn’t have to be fought out in the courts.

    Coincidentally, the meeting took place shortly after the Michigan Supreme Court voided oil and gas development in Michigan’s Pigeon River Country wilderness. If it hadn’t been for the courts and lawsuits, the wilderness would have been scoured. And interestingly, the court ruling leveraged the parties, especially the oil and gas industry, to the table and a settlement was reached, allowing some carefully sited and controlled oil and gas development in the lower 1/3 of the forest and royalties have flowed into the Natural Resources Trust Fund ever since. Positive resolutions and results and lawsuits often go together. One may complement the other.

    But the whole reason environmental laws were passed in the first place was to provide a means for citizens to watch the watchdogs, who had become myopic about protecting nature, people, and conservation. Without the rule of law, humans have a moth-to-fire tendency to become unruly even with the best of intentions, or go off in a direction that ignores the reality of limits — put there for sound values and reasons in the first place.

    Help each other, roll up our sleeves, there’s much to do with hurricane’s lashing back at us. But this does not justify compromising truth and values time tested by case law, precedent, and plain old common sense. If compromise is valued more higher than principle, a bunch of stakeholders could agree that exporting the Great Lakes or expanding fossil fuel consumption is a good thing, for any number of reasons, and it would take one or two persons or groups to call the majority on its violation of community value and principles.

    Stakeholder decisions or solutions don’t necessarily mean a decision is proper, any more than when the Illinois Legislature so many years ago decided to sell one square mile of Lake Michigan off Chicago to a railroad giant. It took the U.S. Supreme Court a few years later to nullify the deed to the corporation, because the Great Lakes are held in public trust, and the legislature, well-intended or influenced as they had been, did not have the authority to impair or sell public trust lands and waters for private purposes.

    So, cooperate, yes, lets be creative, move forward, we don’t have time to litigate our way out of this mess, but do so vigilantly, with an eye and respect for the rule of law and the value of enforcing principle when principle gives way to expediency or greed.

  12. Ballast Water and the St. Lawrence River, Great Lakes
    The Great Lakes States have spoken and the commander and chief’s military plan will be the benchmark for the ballast water discharges foreign ships can dump in US waters. States enacting their own tougher ballast water plan will be at an economic disadvantage. Living invasive s and virus will continue to threaten the St. Lawrence River and the lakes as the Asian carp move forward waiting for Federal funds to help secure an economic success for a new food processing plant in Illinois requiring the continued propagation of carp to be successful,while only using experimental electronic barriers with federal tax money to control their expansion into the Great Lakes. Environmentalist will just have to just get over it, but as one who has been economically impacted by New York’s charade on states rights and ballast water it is nice to see the National Wild Life Federation still trying.

  13. Pingback: Environmental Health News on Fracking November 12, 2012 | Boulder County Citizens for Community Rights

  14. To make it clear it was our Republican majority court supported by polluters in Michigan that restricted who has “standing” to bring suit.

  15. Drew,

    Thanks for pointing out the “any person” issue, it’s of critical importance. The court’s interpretation of it has certainly restricted the ability of people in Michigan to use the law to protect the environment.

    Gary Wilson

  16. Part of the issue in Michigan is the Michigan Environmental Protection Act has been weakened over the last decade by a string of decisions from the Michigan Supreme Court. Though the landmark statute granted the right of “any person” to bring suit to protect Michigan’s environment, the court has restricted who has “standing” to bring suit. The Michigan League of Conservation Voters “Green Gavels” project summarizes the last 30 years of Michigan Supreme Court environmental decisions, and rates the justices on how their decisions’ impact Michigan’s land, air and water. It’s at http://www.michiganlcv/greengavels for those interested.

  17. Thank You Gary, for this article. Management is always responsible, this rule never changes. The laws seem pretty clear, decisions simple. Protect the environment “first” there in lies the rub, who’s on first. In dealing with the environmental managers many times I felt like it was “Who’s on first, with Abbot and Costello. Creative word usage versus facts. Too many people putting themselves first.

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