What’s the shelf life of an environmental law?
How long before its protections begin to erode?
Not long, if the Great Lakes Compact and related state legislation are the markers.
In 2008, the Great Lakes states and the U.S. Congress with the signature of President George W. Bush enacted the Compact, an agreement for the ages.
Shortly after, Michigan passed a law that included award-winning technology to protect the state’s vast reservoir of lakes, streams and connecting groundwater from overuse.
This state action was required by the Compact, which prevented diversions of water from the Great Lakes to thirsty states and even other countries.
The technology in Michigan’s law was a Water Withdrawal Assessment Tool that used predictive modeling to evaluate withdrawal requests. Its use expedited the process and included a safeguard that allowed for oversight by state scientists.
“This pioneering technology is an excellent model for other Great Lakes states to adopt as they continue to implement the Great Lakes Compact,” the National Wildlife Federation’s Marc Smith wrote in 2010.
The Michigan law and the Compact weren’t perfect – no law is – but their passage was a win for the state and region.
Ten years later
Fast-forward to 2018.
Legislation recently introduced in Michigan’s Republican majority legislature would start to undo those 2008 conservation and technology advances. If passed, it would be easier for large water users, primarily farmers, to tap water with minimal review.
The law’s premise would flip the burden of proof that a large withdrawal would harm the ecosystem from the farmer to the state. A farmer could do his own adverse impact analysis and it would be up to an understaffed Department of Environmental Quality to prove it wrong.
Agriculture is Michigan’s largest water user and a big part of the state’s economic engine.
The proposed legislation is in the hearing process and it pits agriculture interests against environmental and conservation groups. Both camps are firmly entrenched in their positions.
In 2008 the region – commonly referred to by its legacy name, the Rust Belt – was praised for its forward-looking vision that would protect and conserve 20 percent of the Earth’s fresh surface water.
The Rust Belt had defied its stereotype and set the bar high for other regions to follow.
The thinking was if Great Lakes states, with all that water, were focused on conserving it, what about us who have less?
Within the region, Michigan was the first state to pass its own laws to protect its water resources and the same logic and praise applied. Michigan, surrounded by water, had set the example for other Great Lakes states to follow.
But the question being asked now is, has the seemingly inevitable process of chipping away at environmental laws begun?
Noah Hall says yes.
“When you start exempting one type of user (farmers in Michigan) and limiting access to information, you undermine the integrity of the system that protects natural resources,” Hall told Great Lakes Now.
Hall is a Wayne State University Environmental Law Professor and water attorney.
Writing in his All Things Wet and Legal blog in 2008 Hall noted that Michigan’s law to protect its water resources had broad support from most constituencies and passed in the state legislature with bi-partisan support.
Now his concern is for the integrity of the landmark Compact that is being exposed to that inevitable process of chipping away at its intent.
“Environmental laws like the Great Lakes Compact are not a point-in-time accomplishment and we’re done with them. Maintaining their integrity takes constant effort,” Hall says.
And Michigan isn’t the only Great Lakes state where the Compact is being tested.
Wisconsin is examining a request to divert up to seven million gallons of Lake Michigan water per day out of the Great Lakes basin to support the operations of technology giant Foxconn.
Foxconn wants to set up shop in a Southeast Wisconsin community that straddles the basin divide. That means it’s not automatically entitled to Lake Michigan water. It’s water supplier, the City of Racine, has to secure approval from the state but unlike Waukesha’s diversion request, approval from other Great Lakes states is not required.
Waukesha received approval to take approximately eight million gallons of water per day most of which would be returned to the lake as treated wastewater.
But water conservationists see the Foxconn request to divert water as one more dent in the protective armor of the Compact.
Wisconsin had already relaxed wetland laws specifically to accommodate construction of the Foxconn plant.
Both the Michigan and Wisconsin situations are classic examples of jobs and economic development being pitted against environmental protections. It’s in vogue to say that the two ends of the spectrum can co-exist, but can they? It’s a tough balancing act.
Loss of institutional memory
Part of the issue with sustaining environmental laws is diminishing institutional memory.
Due to term-limits, few if any Michigan legislators in office when the Compact and Michigan’s water withdrawal law were enacted in 2008 are there now. That means current legislators don’t have ownership of those laws.
Similarly, environmental activists like Andy Buchsbaum, Tim Eder and David Ullrich who pushed for passage of the Compact between 2004 and 2008, have retired or moved on to other roles. They’re no longer in positions to remind legislators what it took to pass the law.
Younger activists today were in high school or college in 2008 so like their legislative counterparts, it’s hard for them to grasp the importance of maintaining the integrity of the Compact.
To Noah Hall’s point about the effort needed to maintain environmental laws, the Compact contains provisions for updates and changes.
Peter Johnson told Great Lakes Now that there are sections that deal with amendments, supplements and revisions.
Johnson is the Deputy Director of the Great Lakes-St. Lawrence Governors and Premiers, the Secretariat of the Compact.
But the bar is high to make changes and Johnson pointed out that in some states, the legislature would have to approve any changes which is an additional hurdle.
Any changes to update or strengthen the Compact would likely have to endure years of scrutiny and the outcome would be uncertain given the complexity and politics.
And if the Compact were opened up to scrutiny and change, might some states want provisions that could weaken its effectiveness? Would the process embolden water-needy states?
Michigan’s legislation to change how water withdrawals are approved is still in the hearing process in the House.
The Wisconsin Department of Natural Resources is gathering information in public hearings for the Foxconn diversion. Anything related to Foxconn is on a fast track for a decision.