MACKINAW CITY, Mich. - Environmental groups and tribal communities are asking the Biden administration to stand with Gov. Gretchen Whitmer in her call to shut down the Line 5 dual pipelines, which run under the Straits of Mackinac.

Canada recently invoked a 1977 treaty to get the United States to allow Enbridge Energy to continue using the pipelines, and has said shutting them down would disrupt Canada's natural-gas supply. But Beth Wallace, manager of the National Wildlife Federation's Great Lakes Freshwater campaigns, pointed out that Line 5 has spilled more than 1 million gallons of oil into the Straits of Mackinac during its nearly 70-year history.

"They're ignoring the pipeline has dozens of locations where protective coating has failed," she said. "The pipeline is bent in at least two locations. It continues to be hit by bow anchors undetected."

On Tuesday, groups delivered a petition with more than 33,000 signatures to the office of U.S. Sen. Gary Peters, D-Mich., hoping he'll pass it along to the White House. The petition noted that Indigenous treaty rights precede the 1977 treaty between the United States and Canada.

Whitney Gravelle, president of Bay Mills Indian Community, said that in 1836, when tribal nations ceded the lands that became the State of Michigan, they were promised the right to fish, hunt and gather.

"And those treaties include solemn promises that the Anishnaabe, my people, would be able to continue to use the water, the land, within that ceded territory to sustain our way of life," she said.

Gravelle said the 1836 treaty rights are still in place today, and will remain so as future generations continue to exercise them.

Line 5 detractors have cited a recent oil spill off the California coast, where an underwater pipeline rupture went undetected until tens of thousands of gallons already had entered the ocean. If a similar leak occurred with Line 5, said Sean McBrearty, an Oil and Water Don't Mix Coalition campaign coordinator, it could be orders of magnitude worse.

"This pipeline was much newer than Line 5, built in an era when pipeline technology was better than it was in 1953," he said, "and yet the operators in California were not able to shut the line down immediately."

By Tom Perkins for Planet Detroit.
Broadcast version by Mark Richardson for Michigan News Connection with support from the Solutions Journalism Network

During the early 1970s, Michigan enacted a bold set of environmental laws that helped form an unprecedented check on the nation's industrial heartland. The state's water and air quality standards went beyond the minimum set by federal law, and it became a leader in managing natural resources and protecting wetlands.

But it wouldn't last long.

The 1990 election of Gov. John Engler ushered in a new era of deregulation, and, for the next several decades, governors and a largely GOP-controlled Legislature shredded environmental protections while defunding and gutting the state's regulatory agencies.

The sustained assault hobbled regulators, who are now often unwilling or unable to hold polluters accountable, and the results are in - Flint's water is poisoned, dangerous air pollution chokes Detroit, and PFAS-contaminated water is killing residents, among other environmental crises.

But now Michigan's polluters face a new kind of check. A loose coalition of environmental attorneys and activists are increasingly confronting industry with a multi-pronged approach - suing to force companies to follow the law, stepping in during the permitting process and waging campaigns to raise awareness of corporate misdeeds.

They're de facto regulators, and their strategy is undeniably effective. They've forced the closure of the toxic incinerator near Midtown, tripped up Nestle as it attempted to seize the state's water, pushed utilities like DTE Energy toward clean energy and taken on industrial polluters in and around southwest Detroit.

These groups see themselves as a last line of defense when there isn't the "political will or appetite to protect the environment," said Nick Schroek, director of the University of Detroit Mercy's environmental law clinic.

"Going forward, we'll likely see more litigation from public interest groups, and that's partly because of a failure of our government, both state and federal, to evolve and add additional environmental protections that were needed in the face of changing circumstances," he said.

The rise has been accompanied by a new focus on environmental justice issues in low income communities that bear the brunt of industries' wrongdoing and political indifference. A new generation of activists from Detroit and other cities has risen, increasingly working with long-established environmental groups (many of whom are new to environmental justice issues) to pressure policymakers.

In recent years, they mounted what is essentially a vigorous public relations campaign that outed Marathon as a local corporate villain. While activists have fought the incinerator since its planning stages, an uptick in public pressure in recent years was critical in forcing its closure, said Nick Leonard, director of the Great Lakes Environmental Law Center.

In the absence of meaningful government oversight, activists are "doing the accountability work for the regulatory system," said Michelle Martinez, acting executive director of the Michigan Environmental Justice Coalition.

"They're the scientists, they're the regulators, they're the checks and balances of a broken system," she said. "They're taking on a David and Goliath fight in almost every single case, whether it's Marathon Oil, or FCA or the Detroit incinerator - you have fights against multibillion dollar fossil fuel corporations that have the lockdown on the political system."

But while citizen and public-interest lawsuits provide the public with a valuable weapon in battles with polluters, ultimately the war can only be won with a robust regulatory apparatus. Last-line-of-defense legal cases brought by residents "are not going to get us where we need to be," on encompassing issues like climate change, Schroeck said.

"We're sort of nipping around the edges of really, really complicated complex issues ... and there needs to be systematic statewide and nationwide efforts, rather than piecemeal litigation," he added. "To solve issues like chemical contamination across the state, there needs to be a uniform approach."

'A hurdle to economic growth'

The deep cuts to the Michigan Department of Environmental Quality in the 20 years that preceded the Flint Water crisis clearly illustrates how defunding regulators can spark environmental disasters that take and destroy lives.

During the early 1990's, Engler weakened the DEQ (now EGLE) by taking a more direct oversight of the agency and enacting deep budget and staff cuts. Gov. Jennifer Granholm next slashed the budget by nearly $100 million, and a 2010 EPA audit of the DEQ found that $300,000 in cuts to the Drinking Water Program had a "significant impact" on the agency's ability to monitor water.

Gov. Rick Snyder's administration pushed an extreme "business-first" philosophy in the DEQ that was summed up by Dan Wyant, the agency's first director, in a 2010 Crain's interview: "It's true we'd like to have more resources, but it's important that we get the economy back on track first. The DEQ can be a part of that by not being a hurdle to economic growth."

By the time the Flint water crisis started poisoning residents, the agency's staff and funding had been cut by around 20% since 2001. The attack on regulators here mirrored that playing out nationally as conservatives began to argue that "environmental protection was something that was somehow at odds with a healthy economy," Schroeck said. But he noted that history repeatedly shows how this approach leads to environmental disasters, like Flint.

"We saw the crippling of our environmental regulators and it was really impossible for them to do their job," Schroek said. "The way these laws are supposed to be designed is that we have a government regulator that's there to protect the public's health, and to be a counterweight to the very powerful corporate interests."

Even if the regulatory agencies were enforcing laws during recent decades, a series of Republican attorney generals largely were uninterested in prosecuting polluters, though that's changed since Dana Nessel's 2018 election. Soon after taking office, Nessel challenged Enbridge's dangerous Line 5 plans and later filed a first-of-its-kind suit against PFAS manufacturers.

Meanwhile, the state's GOP-controlled Legislature in recent years passed "polluter panel" bills that gave industry the power to override new environmental rules. The same group was behind the 2018 lame duck assault on the environment in which it eliminated protections for a vast swath of the state's wetlands, loosened regulations around toxic fracking waste, approved the controversial Line 5 plans, and more.

In 2017, as Flint residents continued suffering and living without clean water, GOP legislative leadership sent an astonishing letter to Snyder that called for less environmental oversight.

"While we can appreciate the role of the DEQ, we see a pattern of unreasonable overreach when it comes to implementation and enforcement of laws and regulations that is alarming, and it seems that this concern has become more evident over the last couple of years," it read.

Courts as a last resort

With the state failing to protect the environment, public-interest attorneys can turn to the courts.

They typically use one of several tools.They can file a citizen suit in federal court under the Clean Air or Clean Water acts and ask a judge to order polluters to get in compliance with federal law. That's the approach attorneys have taken with the incinerator, US Steel and other air polluters around Southwest Detroit.

Alternatively, they can sue in Michigan Circuit Court under the Michigan Environmental Protection Act of 1970, and ask a judge to declare a polluter a public nuisance. That approach is less common because plaintiffs can't recoup legal costs.

Another legal remedy is intervening in DTE Energy and other utilities' rate cases. A range of activists have successfully pressured regulators to force companies to limit rate increases and close coal plants, among other wins.

Meanwhile, activists are paying closer attention to the permitting process and making sure residents' voices are heard

One example this year was eastside residents living near the FCA plant who pressured EGLE to require FCA to install pollution controls as the factory expanded. Although EGLE ultimately ignored residents' demands, Gregg Newsom, a Detroit People's Platform organizer, highlighted it as an example of the community making regulators hear more than just the industry's voice.

'It's a life and death situation'

Until recent years, Southwest Detroit's Marathon Oil refinery polluted with near-carte blanche, spewing carcinogens while pumping out hundreds of tons of greenhouse gases annually, plaguing residential neighbors with respiratory disease and other ailments. The coke dust it piled on the Detroit River's shores blew across the region, dusting neighboring properties with the toxic substance.

But Marathon no longer operates with impunity. A coalition of neighborhood residents-turned-environmental activists have partnered with EJ groups and attorneys to confront the threat and hold Marathon to account.

Over the last four years, they forced Detroit policymakers to take a stand against Marathon and require it to cover loose piles of toxic coke dust piled on the Detroit River's banks. A year later, state regulators forced the company to install air filtration systems in a nearby school and provide real time air quality data.

Though litigation is ongoing, the wins are a sign of a shifting tide, and Martinez called it "a testament to the power of organizing" that's increasingly common in communities of color facing an outsize burden of pollution and climate change. During the last 10-15 years, the ranks of activists in these communities has swelled.

"When I came back to Detroit 12 years ago ... I could count with my right hand how many environmental justice activists there were in the city. In 2020? There are dozens of climate justice, environmental justice groups, organizations, hundreds, if not thousands, of people who are well informed, skilled and ready to make change."

Community involvement is critical, said Darryl Eley Jordan, senior organizer with the East Michigan Environmental Action Council (EMEAC), because residents drum up support in their own impacted neighborhoods in a way that outside groups, like lawyers, journalists and the established advocacy groups often can't.

Jordan highlighted EMEAC's outreach in neighborhoods around the incinerator, which helped locate residents who suffered from its toxic emissions.

"It takes people in the community to help others understand these issues in a language that they understand - that's how we build some power and keep politicians in line and responsive to our needs," Jordan said.

Meanwhile, established environmental groups are increasingly working with residents in impacted communities to determine priorities. Sierra Club attorney Elena Saxonhouse noted that the group now takes a "bottom up" approach in deciding which issues to tackle.

"[We] listen to what the communities we're working in want and go from there - it's not all top down. You can't just tell people 'you should care about coal plants,'" she said.

Martinez welcomes the new commitment of organizations like the Sierra Club to valuing the voices of the residents living these battles in their daily lives.

"The writing is on the wall, and it has perhaps not hit middle and upper- income white America in the same way," Martinez said. "The commitment to justice and to a cleaner, healthier environment belongs to those who breathe toxic air every day, because it's a life and death situation. It's not just a hobby or a pet interest."

North Dakota's plan to boost animal agriculture has reignited a thorny issue: loosening restrictions on corporate ownership of farms. The state said it's about competition, but there are renewed concerns about environmental setbacks, as well as tribal considerations.

A bill in the Legislature would bring some big changes to a decades-old law prohibiting corporations from owning North Dakota farmland. Exemptions would essentially be applied to cattle, hog and poultry feedlots and dairies.

Scott Skokos, executive director of the Dakota Resource Council, worries the state does not have the regulatory capacity to monitor a potential influx of factory farms.

"I don't necessarily think that we have robust enough rules for us to really welcome an industry that will come in [here] in large scale, most likely," Skokos pointed out.

He contended if regulations lag behind development, waterways would become polluted and air quality would suffer. Tribal advocates worry about dumping of waste near reservations, pointing to examples from the fossil-fuel industry.

The state's agriculture commissioner told a House committee it is about having companies partnering with local farms, while noting there would still be restrictions.

The bill includes a limit of 160 acres in setting a business structure for corporate ownership.

Nicole Donaghy, executive director of North Dakota Native Vote, said such a property can still hold a lot of animals and is not sustainable. She also argued corporations would be able to work around the limitations.

"All it takes is creating another subsidiary in order to obtain another 160 acres," Donaghy asserted.

Her group's research showed it means up to 2,600 farms could be used to gain a competitive advantage.

Meanwhile, state leaders have testified extra manure from the operations could improve soil health. Skokos acknowledged while it is true, the risks are far greater.

"The volume that we're looking at if we get to the scale that people want to get to in North Dakota would be very damaging," Skokos emphasized.

Leaders in Bismarck have argued the state needs to complement its grain production by making significant gains in livestock, noting North Dakota is falling behind neighboring states. The bill is expected to see more debate in the coming weeks.

Racial disparities are apparent when it comes to rooftop solar installation, researchers have reported. In Minnesota, there are efforts to close these gaps, and those involved point to the selection of three Twin Cities areas for a key project. The Lake Street Council in Minneapolis and two other groups have been offered to join the Solar Energy Innovation Network, which is under the umbrella of the U-S Energy Department. The network is designed to reduce barriers for underserved communities to adopt the technology.

Matt Kazinka, senior strategic initiatives manager for Lake Street Council, said its focus is on helping smaller BIPOC and immigrant-owned businesses in South Minneapolis.

"These businesses are the lifeblood of our community, but it is a struggle," Kazinka said. "They put a lot on the line to just operate their business, and that means a lot of the time they don't have the bandwidth and the resources to explore new ways of doing business or new opportunities."

For solar access, a 2019 study that relied on census tracts found that Black residents have 69% fewer solar installations compared with non-racially diverse areas. The nonprofits will help owners navigate the process, including financing and working with companies that can establish trust in these communities. The other targeted corridors in the Twin Cities include West Broadway and University Avenue.

Terry Austin, community engagement manager of the Northside Economic Opportunities Network, will help to spur solar adoption along the West Broadway corridor. He said business owners and residents in disadvantaged neighborhoods are overlooked when it comes to renewable-energy education, and added that paves the way for bad actors to prey on these areas, creating more long-term harm.

"And when they're taken advantage of on the technology, that can affect their business and their home. These things have more of a generational effect," Austin said.

Meanwhile, Kazinka added many of these businesses are in older buildings in need of upgrades, and said the project could help them pursue energy efficiency at a time when solar costs are coming down, and government incentives are more readily available.

"We're in a time right now where solar is becoming a better deal than it's been in a long time because new federal legislation is making the tax credits more generous, we have more long-term certainty and [it'll] be easier to access in a few different ways," he said.

The local project is one of just eight nationwide recently selected to join the network.