A New Home for the Great Lakes Law Blog
The Great Lakes Law blog has moved to a new web address, www.greatlakeslaw.org/blog.
The Great Lakes Law blog has moved to a new web address, www.greatlakeslaw.org/blog.
Sorry for the carbon emissions, but I’m flying again today to speak at a conference sponsored by Hamline Law School in Minnesota. The conference, “Water, Catalyst of Life and Strife: A Threat to Security or a Vital Opportunity to Foster Cooperation?” should be an exciting mix of presentations on international and interstate water disputes. I’m giving a talk on water management in the Great Lakes region, and I’ll also be part of a panel that will discuss U.S.-Canadian water relations. According to the conference website, the symposium “will explore the water crisis including conflicts arising in the freshwater context and the impact that such a relationship has, and will continue to have, on global and national security. It will then endeavor to highlight and expand upon the current framework for addressing these issues through international and intrastate cooperation.”
As I suspected, Ohio's Lt. Governor Lee Fisher simply misspoke when he raised the possibility of selling Great Lakes water in the near future. According to a Toledo Blade story (by Tom Henry, one of the most experienced environmental reporters in the region), Fisher did not mean to imply that the Governor would in any way consider a sale of Great Lakes water. Fisher later clarified, "I should have been more careful in my comments about diversion because I should not have left even a crack in the door for diversion in the future." Unfortunately, someone else in Ohio won’t be content with just cracking the door open. Ohio state senator Tim Grendell wants to leave the door to the Great Lakes wide open to diversions by trying to kill the proposed Great Lakes compact. If anything good comes of the Lt. Governor’s mistake, it will be to educate senator Grendell about the tremendous opposition to Great Lakes diversions and broad bipartisan support for the Great Lakes compact.
Whether you see it as a short-term drought or a long-term climate change trend, the south and southwest are clearly feeling the pinch of water shortages. Will these regions try to divert Great Lakes water to meet their needs? That is the question explored in an excellent newspaper article by Michael Scott of the Cleveland Plain Dealer, “Water is the Great Lakes area’s prize.” In the article, I suggest that climate change is likely to increase the possibility of Great Lakes diversion proposals sooner rather than later. Skeptics contend that the distance of such a diversion, and thus the high cost, make it unlikely. However, the distances are not that great – it’s only about 500 miles from the Great Lakes to parts of the southeast experiencing drought, a distance that we have diverted water before. Artificial connections are already in place that could lead to future diversions, such as the Erie Canal connecting the Great Lakes to the Hudson River north of New York City and the Chicago diversion which sends Great Lakes water down the Mississippi River to the Gulf of Mexico. I’m not saying it would be easy, logical, or cheap. But never underestimate the ability of the federal government to waste billions of dollars of taxpayer money on a dumb water project.
This is not an April Fools’ Day joke. The Toledo Blade reports that Ohio’s Lt. Governor, Lee Fisher, told a local audience at an event near Lake Erie that “I think it's fair to say that we’re going to see in the next decade states and other countries looking for ways to get access to our fresh water supply and we're going to have to make some tough decisions about whether we want that to happen and, if so, how.” The Lt. Governor, who is also director of the Ohio’s Department of Development, made the comment in response to audience question. The Governor’s office backpedaled from the comment, and made clear that Governor Ted Strickland does not support selling Great Lakes water. From my work with the Governor’s administration, which strongly supports the Great Lakes Compact to prevent the sale and diversion of Great Lakes water, I think this was a simple mistake by the Lt. Governor on a subject that he doesn't regularly address. Still, it is a good political lesson for the handful of Ohio state senators that are trying to block the one law – the Great Lakes Compact – that would effectively block the diversion of Great Lakes water.
“They can keep their pollution on their side of the lake.” This was the quoted response of the Chicago Park Superintendent when he was snubbed by Indiana officials who would not let him testify at a hearing involving the BP oil refinery expansion in Indiana, which would increase pollution in Lake Michigan. Of course, pollution does not stay on just one side of a lake, and many environmental decisions in one state affect other states and their citizens. Putting aside the merits of the BP expansion and permits (which are still being debated), the BP conflict shows just how poorly we manage interstate environmental harms. Current state and federal laws may even encourage interstate harms as a political externality. In an article just published by the Harvard Environmental Law Review, I propose a new state-based policy as a potential solution. States should adopt an “interstate environmental impact assessment policy” to “provide a procedural mechanism for an affected state and its citizens to influence the source state and minimize or prevent interstate environmental harms.” The citation for the article is Noah D. Hall, "Political Externalities, Federalism, and a Proposal for an Interstate Environmental Impact Assessment Policy," 32 Harvard Environmental Law Review 49 (2008). Download Hall_IEIA_article.pdf
Peter Annin, author of the book Great Lakes Water Wars, is coming to Wayne State on April 3 for the annual Wayne-Windsor Canadian Studies Symposium. Peter is an exceptional journalist and author, and his book is required reading for anyone interested in Great Lakes water issues. He also gives a great presentation based on his book, and Wayne State is fortunate to have him as the keynote speaker. In addition to Peter’s keynote presentation, there will be a panel on the Great Lakes Compact with Marcia Valiante, Professor of Law, University of Windsor; George Kuper, President & CEO, Council of Great Lakes Industries; and Molly Flanagan, Great Lakes Water Resources Program Manager for the National Wildlife Federation. Marcia is one of the established experts in Great Lakes law and policy from Canada, and we worked together closely last year teaching a joint course on U.S.-Canadian environmental law. George is a class act, dutifully representing the interests of large industries while advancing a sustainable vision for the region. And Molly is a passionate and strategic advocate that has been on the front lines of getting the compact passed in every state. It should be a great event. Unfortunately, due to my scheduling ineptitude and inability to clone myself, I can’t be there to personally welcome everyone to Wayne State, since I’ll be speaking at the “Water, Catalyst of Life and Strife” symposium in Minnesota the same day. But if you are in the Detroit-Windsor area, I highly recommend coming to this event. To register, email Jessica Addy of the Detroit Orientation Institute.
State lawmakers are perhaps the most important decision-makers for protecting the Great Lakes. They create the laws, shape the policies, and provide the funding that makes or breaks our communities and natural resources. The Great Lakes Legislative Caucus, chaired by Michigan State Senator Patty Birkholz, helps state lawmakers learn from each other, exchange ideas, and coordinate their efforts throughout the region. The Great Lakes Legislative Caucus has now launched a great website - www.greatlakeslegislators.org - that offers many resources, including Great Lakes state and federal legislative trackers, maps of the Great Lakes basin's state and federal legislative districts, and a list of legislators representing the region. This is just the latest result of an ongoing effort led by Senator Birkholz and Mike McCabe of the Council of State Governments to help the states work together to address regional issues.
One of the many great ideas discussed at the NAELS conference in Vermont was local advocacy for riparian buffer ordinances. Oday Salim of the Wayne State Environmental Law Society reports:
Riparian buffers serve as natural boundaries between local waterways and existing development. They help protect water quality by filtering pollutants, sediment, and nutrients from runoff. Other benefits of buffers include flood control, stream bank stabilization, stream temperature control, and room for lateral movement of the stream channel. Many smaller streams that fall wholly within county and/or municipal jurisdictions lack buffers. Federal and state statutes often fail to address this problem, and an effective local solution is a riparian buffer ordinance. The EPA has a model ordinance and helpful tips, and the Huron River Watershed Council recently developed a model ordinance specific to Michigan. Michigan needs riparian buffers (and advocates to make it happen). The Wayne State Environmental Law Society, along with help from the Great Lakes Environmental Law Center, plans to work with local jurisdictions to pass riparian buffer ordinances to better protect Michigan’s waterways. For more info, email Jim Roush or Oday Salim.
Attention law students – take a road trip to Vermont for the annual National Association of Environmental Law Societies conference. The conference will cover a wide range of pressing topics, including climate change, engaging China, and of course water (I’ll be speaking as part of a panel on water supply and quality issues). US Senator Bernie Sanders is giving the keynote address. I’m looking forward to learning about the innovative work being done by environmental law societies around the country, as these groups are often on the cutting edge of emerging issues. And of course, what better way to escape Michigan’s March weather than to go to the mountains of New England.
UPDATE - Why I love student conferences. I just got a last minute conference announcement from the organizers: "In the spirit of an environmental conference, we will not be providing bottled water or coffee cups. Instead, we encourage participants to bring their own water bottles or travel mugs. Some VLS [Vermont Law School] Nalgene bottles and travel mugs will be on sale in the registration area for your convenience. Both UVM [Univ. of Vermont] and VLS offer discounted coffee refills if you bring your own mug!"
Congressional Quarterly's weekly magazine (CQ Weekly) has an excellent cover story this week on parched earth politics. According to the story's lead, "with regional shortages pitting state against state, the federal government is called on to step in with a firm-handed water policy focusing on demand." I offer some thoughts on the energy-water tradeoff, why Great Lakes leaders are weary of federalizing water policy, and a warning for the next presidential administration. And since I’m not running for office, I suggest ending the billions of dollars of taxpayer water subsidies for farming in the desert. Download CQ_Weekly_Creating_New_Water_Ways.pdf
The Michigan Legislature is currently considering several bills to better manage the state's water (stay current on pending legislation through the Great Lakes Legislative Caucus). I was invited to testify before the Michigan Senate Natural Resources and Environmental Affairs Committee late last year, and finally got around to preparing some written testimony this week (it’s spring break at school). There is a heated debate over extending the public trust doctrine to groundwater in Michigan, much of it based on ideology. I offer a modest proposal that recognizes the connection between groundwater and surface water and applies well-established legal doctrines. Download Hall_PTD_and_groundwater_memo.pdf
There is only one good reason why a small handful of legislators from Wisconsin and Ohio would try to kill the proposed Great Lakes Compact and undermine the efforts of thousands of citizens, eight governors, and the overwhelming majority of the region’s state lawmakers. They must be retiring to Arizona, and want to take the water with them. I’m guessing whatever friends they make there won’t add up to the friends they’ll lose here. Let’s hope they come to their senses and listen to their colleagues and constituents. For the full story, see the dependably great reporting from Dan Egan at the Milwaukee Journal Sentinel (Great Lakes compact hits rough waters) and the AP’s John Flesher (Great Lakes compact could fall apart). The AP story closes with my suggestion that these legislators could benefit from marriage counseling.
