When Michigan Gov. Gretchen Whitmer took office in January 2019, she immediately put a spotlight on the Enbridge Line 5 oil pipeline and started the process that would eventually lead to her ordering it shut down.
In her 2018 campaign, Whitmer also pledged to remedy the inequities related to water withdrawal issues, specifically a Nestle Waters case being fought by grassroots advocates that originated in the administration of former Gov. Rick Snyder.
Both are among the most high-profile environmental issues in Michigan in recent times and are at the heart of the public trust advocacy work Liz Kirkwood does.
Kirkwood, executive director of Traverse City-based For Love of Water, told Great Lakes Now that FLOW’s origins are in the original Nestle bottled water case in the early 2000s and its work is based on public trust principles as is its Line 5 work.
The essence of the public trust doctrine is that resources like groundwater and the Great Lakes are held in trust by the state for the people.
“We are very focused on accountability of government through public trust protections and empowerment of citizens to hold state governments accountable,” Kirkwood said in a recent interview where she talked about the Line 5 and bottled water issues.
After originally negotiating with Enbridge to settle the Line 5 issue, Whitmer recently ordered the shutdown of the aged pipeline that threatens the water in the Straits of Mackinac.
The fate of Line 5 is now enmeshed in the courts, which is what Whitmer has said could be the worst case scenario.
FLOW knew it would take litigation to shut Line 5 down, Kirkwood said, and likened Whitmer’s November order to “the other shoe dropping” after Attorney General Dana Nessel’s 2019 lawsuit.
Kirkwood cautioned that there’s more to come.
“I don’t think a lot of people know or understand that this is just the beginning of the litigation to stop and shut down Line 5 permanently,” said Kirkwood, who called for Michiganders to support the shutdown.
“This is the moment for citizens, businesses, tribes and state leaders to support the governor’s actions,” Kirkwood said.
Enbridge has consistently said that the current Line 5 is safe and it operates with the approval of its federal regulator.
Prior to leaving office, the Snyder administration signed an agreement with Enbridge to construct a pipeline in a tunnel that would run under the Straits of Mackinac and replace the existing Line 5.
Enbridge said its polling indicates the tunnel replacement has the support of Michiganders and is supported by the Michigan House of Representatives and 26 counties including 14 of the 15 Upper Peninsula counties.
Great Lakes Now asked Kirkwood if the tunnel is a reasonable compromise.
The option of either the existing Line 5 or a pipeline in a tunnel is a false dichotomy rooted in the past, and Line 5 “is not vital energy infrastructure” for Michigan, she said.
Kirkwood also cited Gov. Whitmer’s executive order aspiring to have Michigan be carbon neutral by 2050 as another reason the tunnel should not be built. If constructed, it means Michigan would be an oil transport conduit for decades to come.
“The tunnel alternative necessarily charts a future of fossil fuel dependency in an era where oil markets are dramatically changing, and there’s extraordinary scientific consensus that we must adapt immediately, and that means embracing renewable energies,” Kirkwood said.
Bottled water and the Nestle case
The recent decision by Michigan to dismiss a citizen’s contested case complaint concerning water withdrawals for bottled water elicited strong reactions from Kirkwood and FLOW.
By dismissing the case, the Department of Environment, Great Lakes, and Energy affirmed a decision by the Snyder administration to allow Nestle Water to take more water for bottled water.
On its website, FLOW said the decision was “baffling” and that EGLE “dodged a decision and Nestle dodged the rule of law.”
“The EGLE director’s decision effectively erased a year and a half of a contested case that the Michigan Citizens for Water Conservation brought before an administrative law judge,” Kirkwood said.
EGLE in its decision said that it did not have subject matter jurisdiction and that the case should have been appealed directly to a circuit court.
“The decision is disappointing because it sets the bar so high for citizens to challenge any bottled water permits,” Kirkwood said. Plaintiffs would be faced with costs in the hundreds of thousands of dollars in legal fees if they have to go directly to a court, according to Kirkwood.
“That is not what I believe the legislature intended,” Kirkwood said, and she thinks the bottled water issue has “really touched a nerve with everybody in Michigan.”
“There’s something that feels so wrong” when a multinational corporation can come to a rural area, pay a nominal $200 fee to take water then sell it back in plastic bottles for profit, Kirkwood said.
Nestle Waters North America said in a statement after the dismissal of the case, “we firmly believe that EGLE’s decision to approve our permit application was appropriate, as it carefully reviewed and considered our permit application in what it called ‘the most extensive analysis of any water withdrawal in Michigan history.’”
Because Gov. Whitmer campaigned on remedying the bottled water withdrawal issue then affirmed the Snyder decision allowing for increased withdrawals, Great Lakes Now asked Kirkwood if the issue is settled.
“I don’t think people are going to be willing to let this go. This issue has been a thorn in everybody’s side, and I don’t think political affiliation matters here. Michiganders are outraged that you can have a corporation come in and take a resource like our water essentially for free,” Kirkwood said.
Michigan Citizens for Water Conservation continues to oppose the increased withdrawal and has renewed a request for Attorney General Dana Nessel to conduct an investigation and take action as she did on Line 5.
Read more Nestle and Line 5 news on Great Lakes Now:
Featured image: Liz Kirkwood, For Love of Water executive director (Photo by Pete Kirkwood)