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Ballast Water Blues

8/28/2012

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Ballast Water Blues

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by Drew YoungeDyke

One of the biggest challenges facing the Great Lakes is the damage caused by invasive species, many of which arrived in the Great Lakes by stowing away in the ballast tanks of oceangoing vessels. 

In 2005, Michigan took the lead on protecting the Great Lakes by passing a Ballast Water Statute that requires oceangoing vessels to either refrain from dumping ballast water in the lakes or to use environmentally sound treatment measures. A new bill, though, would insert a loophole in the Ballast Water Statute that could allow new invasive species into the Great Lakes.

After the 2005 Ballast Water Statute was passed, the shipping industry immediately challenged it. Two federal courts, however, upheld both its legitimate purpose and its constitutionality. The Sixth Circuit Court of Appeals said:

“To the extent the permit requirement even marginally reduces the problem of [aquatic nuisance species] introduction, its local benefits would be very large. In contrast, the burdens imposed by the permit requirement ... are de minimis.”

The shipping industry, though, has now introduced a bill that would punch a loophole into the Ballast Water Statute big enough for invasive species to swim through. SB 1212 would identify one specific treatment method - deep-sea ballast water exchange - that could satisfy the permit requirements. This is the same method required by the Coast Guard that - because it could still allow invasive species through - prompted Michigan to enact the Ballast Water Statute in the first place. Even the Coast Guard is updating its standards away from this method, though there is debate about whether even its upgraded standards will be strong enough. SB 1212, however, would lock this method in place, essentially repealing Michigan’s Ballast Water Statute.

Invasive species cost the Great Lakes region $200 million a year, according to the National Wildlife Federation. That’s $1 billion every five years, which is only a drop in the bucket, though, compared to the $7 billion Great Lakes fishery and $12.8 billion tourism economy. An estimated 823,000 Michigan jobs depend on the Great Lakes and tourism, and 90,000 jobs depend on the Great Lakes just in the counties which border them. As more of those counties are in Michigan than any other state, Michigan has to be the leader in protecting the Great Lakes from the invasive species which threaten those jobs.

Invasive species prevention is one of the few truly bipartisan issues in Michigan. In fact, the unanimous approval of a bill to create an Invasive Species Council prevented any member of the Legislature from getting a 0% on the Michigan League of Conservation Voters' Michigan Environmental Scorecard. The 2005 Ballast Water Statute also passed the Senate unanimously, and only one representative voted against it. Among those voting for it were two co-sponsors of SB 1212, Senators Tom Casperson and Joe Hune, who were representatives at the time. Given their support for the 2005 law and the Invasive Species Council, its perplexing why they would flip-flop their positions now and co-sponsor a bill that would effectively repeal the Ballast Water Statute which they helped enact.

So, we must ask, who would benefit from weakening ballast water requirements from oceangoing vessels? Obviously, that would be oceangoing vessels which would no longer have to refrain from discharging ballast water. However, according to DEQ statistics, less than 1% of port operations in Michigan are from oceangoing vessels. This means that we would be risking a $7 billion fishery, a $12.8 billion dollar economy, and tens - if not hundreds - of thousands of jobs so that less than 1% of ships which dock in Michigan can avoid the inconvenience of not polluting our waters with invasive species.

Michigan has long been a leader in protecting the Great Lakes from invasive species. As The Great Lakes State, it’s up to us to set the bar for other states about what’s expected of them to keep the Great Lakes healthy. How can we ask Chicago to stand up to shipping interests and close the Chicago locks to keep out Asian carp, when we’re caving to them and letting invasive species into the Great Lakes by weakening our ballast requirements? Michigan has too much at stake - too many jobs - to stop being a leader now.

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Of Judges and Rivers

5/25/2012

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Pigeon River
Of Judges and Rivers
By Drew YoungeDyke
This article first appeared in Riverwatch, published by the Anglers of the AuSable, and in Michigan Trout, published by the Michigan chapter of Trout Unlimited.

When you were waist-deep in your favorite river on Opening Day, you may have recalled literature you’ve read which described the scene before you. You may have thought of something from Jerry Dennis, Tom McGuane, Jim Harrison, or Ernest Hemingway. Maybe you recalled the following Robert Traver line from the intro to Trout Madness: “For lawyers, like all men, may be divided into two parts: those who fish and those who do not.”

Well, probably not, but Traver was the pen name of Michigan Supreme Court Justice John D. Voelker.  The Michigan League of Conservation Voters actually put that theory to the test this Spring with its newest accountability tool, Green Gavels, which summarized and rated every conservation and environmental decision the Michigan Supreme Court has made in the last thirty years.

Michigan LCV has partnered with faculty and students from the University of Michigan Law School (Voelker’s alma mater) to present Michigan Supreme Court decisions in an easily understood format. Students have researched and summarized cases dating back to 1982, and Michigan LCV applied an analysis to the summaries to help readers quickly understand the impact that the Court can have on Michigan’s natural resources. The results were published online at www.michiganlcv.org/greengavels shortly after the trout opener. 

Anglers know as well as any the role that judicial decisions can play in conservation. It is anglers who see dead fish on the banks after a dam releases sediment, a rainbow-colored sheen after fuel is spilled, or foam gathered against a log after surface runoff drains who-knows-what into the streams we fish. Angler organizations are often the first to challenge a permit which will threaten a river and enforce a permit which will save one. 

The Anglers of the AuSable v. DEQ decision was a defining moment in conservation and Michigan law as to how we protect our rivers from pollution. The case examined whether Merit Energy could clean one watershed by discharging partially-contaminated into another, and whether citizens could sue to block a permit which would allow it. In a 2010 decision authored by Justice Alton Thomas Davis, the Court ruled that citizens could challenge a permit under the Michigan Environmental Protection Act and that discharging contaminated water into the AuSauble watershed was an unreasonable use of water. After the 2010 elections, though - in which Justice Davis lost and a new anti-conservation majority was elected - the Court vacated Justice Davis's opinion in April 2011. 

It has not always been this way, though: in 1979, the Court ruled in favor of the West Michigan Environmental Council, the Pigeon River County Association, Trout Unlimited and other groups to deny permits which would have allowed oil and natural gas drilling in the Pigeon River Country State Forest. It wasn’t until after the legislature threatened to gut the Michigan Environmental Protection Act that drilling was eventually allowed, and the long fight over drilling which preceded the WMEAC v. NRC decision helped to establish the Michigan Natural Resources Trust Fund as a compromise in 1976. In fact, Justice Voelker’s “Testament of a Fisherman,” made it into the court record in that case when read by angler Dave Smethurst. When Voelker found out that his writing made it into the record, he exclaimed, “We got the sons-a-bitches, didn’t we?”

While Green Gavels will not initially cover cases dating back to Voelker’s tenure on the Court, I’m sure that he would have earned a “Green Gavel” or two.  This tool is retrospective, but it will inform conservation-minded citizens on issues about which they care deeply. By going back 30 years, it will survey every conservation decision made by every sitting Michigan Supreme Court justice. Citizens will not only be able to understand the impact the Court can have on conservation, but they’ll also be able to see the impact that each sitting justice has had on conservation. Justices will have individual profile pages which list how they ruled in each case, and a scoreboard which shows all of their ratings together.

So that citizens need not be legal scholars to understand Green Gavels, Michigan LCV will provide ratings and analyses on cases and judicial decisions, as well as a glossary of any legal terms used. Aldo Leopold once wrote, “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”  While it was tempting to apply that standard to the cases, we recognized that many of them will be decided on legal issues which sometimes have little to do with their ultimate environmental impact. Therefore, we gathered an advisory panel of experienced Michigan attorneys - including a retired Michigan Supreme Court justice - to review our ratings and analyses to ensure that they are fair and objective.

Michigan courts often decide cases with conservation impacts. Few go before the Michigan Supreme Court each year, but those which do have significant impacts. Their decisions impact how all lower courts decide conservation cases, though.
For instance, the Pigeon River Country Association and Trout Unlimited joined in a lawsuit to enforce a consent judgment requiring Golden Lotus’s Song of the Morning Ranch yoga retreat to fully remove a dam which has caused multiple fish kills in its long history, most recently in 2008. Otsego County Circuit Court Judge Dennis Murphy ruled last summer that “remove the dam” means “remove the dam,” but Golden Lotus appealed the decision in hopes that “remove the dam” means “remove part of the dam.” The Court of Appeals denied Golden Lotus’s application to appeal in March. 

In the Upper Peninsula, the National Wildlife Federation, the Keweenaw Bay Indian Community, the Yellow Dog Watershed Preserve, and Save the Wild UP are opposing the Kennecott Eagle Rock sulfide mine because it is being dug directly beneath the headwaters of the Salmon Trout River, the spawning grounds of Lake Superior’s rare coaster brook trout. Conservationists worry that acid drainagefrom the waste rock produced by the mine could leach into the river and that the roof could collapse beneath the headwaters. They are appealing Ingham County Circuit Court Judge Paula Manderfield’s decision to deny their challenge.  Kennecott has already blasted into Eagle Rock, a spiritual Ojibwe site. 

Whether this particular cases make it to the Michigan Supreme Court or not, it is important for Michigan citizens  to know the impact the Court has through cases like these because more will certainly come in the future. In fact, just last week, the Court decided that the DEQ could hold municipalities responsible for preventing raw sewage from flowing into the Great Lakes. 

Unfortunately, many Michigan residents know very little about our Supreme Court.  Green Gavels will bridge that information gap by providing citizens across the state with an objective tool to gauge the impact of sitting Supreme Court justices, and our rivers and streams will be better off for it. 

Drew YoungeDyke is the Policy & Communications Specialist for the Michigan League of Conservation Voters, a lawyer, and an angler.  

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Michigan LCV's Green Gavels Rates Michigan Supreme Court on Conservation Cases

5/17/2012

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Michigan LCV's Green Gavels Rates Michigan Supreme Court on Conservation Cases
by Drew YoungeDyke

ANN ARBOR --- The Michigan League of Conservation Voters (LCV), in cooperation with the Environmental Law and Policy Program at the University of Michigan Law School, has evaluated every Michigan Supreme Court decision over the past 30 years for their impacts on conservation and environmental protection. Following that analysis, Michigan LCV worked with a bipartisan advisory panel to apply ratings - red, green, or yellow gavels - to each relevant case so Michigan citizens can quickly gauge the conservation impact of each case and each justice’s opinion.

It is now available to every Michigander online at www.michiganlcv.org/greengavels.

“Green Gavels pulls back the heavy velvet curtains that have surrounded the Michigan Supreme Court for so long and allows citizens to look objectively at how each decision impacts our land, air, and water,” said Michigan LCV Executive Director Lisa Wozniak.

University of Michigan Law students, under the supervision of Professor David Uhlmann, researched and wrote objective summaries of every relevant case. Professor Uhlmann previously served as chief of the Environmental Crimes Section at the U.S. Department of Justice during the Clinton and Bush administrations.

"Judicial decisions play a significant role in environmental protection by ensuring that our environmental laws are properly implemented. The Green Gavels project will provide greater understanding about the role of the courts in our environmental law system and enable voters to make choices that better reflect their environmental values," said Professor David Uhlmann.

Attorneys on staff at Michigan LCV applied positive, neutral, or negative ratings to each case and to each justice’s rulings. Ratings were then peer-reviewed by the bipartisan advisory panel. The University of Michigan Law School did not participate in the rating process and takes no position regarding support or opposition for any judicial candidates.

Michigan LCV already grades the State Legislature and Governor Snyder through its Legislative Scorecard and “How Green Is Your Governor?” programs, respectively. Green Gavels extends this work to the judicial branch, thereby finally holding each branch of state government accountable, the only conservation organization in the state to do so.

“The Supreme Court’s decisions touch every trout stream, every forest, every park, and every inch of Great Lakes shoreline,” said Tom Baird, a Member of the Board of Directors for the Anglers of the Au Sable and one of the lead attorneys on the landmark Anglers of the Au Sable v. DEQ Supreme Court case in 2010. “Green Gavels is a much-needed project. People need to know the impact that justices have on conservation.”

The Michigan League of Conservation Voters, a 501(C)(4) nonprofit organization, is the leading political voice for protecting Michigan’s environment. Green Gavels can be found on the Michigan LCV website at www.michiganlcv.org/ 

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Gone in 48 Hours

3/6/2012

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This post was originally published on the Michigan LCV blog on March 2, 2012. Re-posted with permission. 
Gone in 48 Hours
Rep. Franz's Bill Would Put the Brakes on Clean Energy Jobs, 
but Swift Response Stops It In Its Tracks
by Drew YoungeDyke

As you may have read by now, the Michigan Public Service Commission released a report just over a week ago which said that electricity providers were on track to meet Michigan’s renewable energy standard of 10% by 2015, and that getting there cost much less than they anticipated - so much so that Consumers Energy reduced their renewable energy surcharge by 75%. So what’s the next logical next step for a burgeoning clean energy manufacturing economy? According to Rep. Ray Franz (R - Onekama), it’s to scrap the renewable energy standard altogether.

What? Yeah, really. On Leap Day, Rep. Franz introduced HB 5447, which would repeal the sections of the 2008 Clean, Renewable, and Energy Efficiency Act that contain the renewable energy standard for electric utilities and the energy efficiency standards for natural gas providers. That’s quite a leap, indeed. We need to take advantage of the manufacturing gains we’ve made as a result of the 2008 standard, as highlighted in the State of the Union, and put the petal to the metal on clean energy job creation.

The MIRS News Service, widely read in the Capitol, quoted Michigan LCV Political Director Ryan Werder on this bill:

"Everyone from the utilities to the Governor to manufacturers to the Public Service Commission agree that the existing renewable energy standard works and that Michigan is on pace to meet it. The RES spurs investment in Michigan's expanding clean energy manufacturing sector that directly supports tens of thousands of jobs. Repealing it, as Rep. Franz is trying to do, would be sending a legislative pink slip to thousands of workers."

Both Consumers Energy and DTE told MIRS that they would continue their renewable enegy plans and that they oppose Rep. Franz's bill. 

The 2008 standard is a great start, but since it was enacted, Minnesota, Iowa, Illinois, and Ohio have enacted higher standards. When clean energy manufacturers are deciding where to locate their plants, you better believe that transportation and shipping costs are considered. They’re going to build new plants where the renewable energy demand is and where workers will be installing and maintaining clean energy facilities.

Michigan has unsurpassed manufacturing talent. We can out-compete other Great Lakes states for clean energy jobs as long as we can match them for renewable energy demand. That’s why the Michigan Energy, Michigan Jobs coalition has introduced the 25% by 2025 ballot initiative. It builds on the 2008 standard and contains a 1% rate cap, which means that utilities cannot raise rates more than 1% a year due to the standard. In light of the Public Service Commission report, though, it’s obvious that they won’t have to. As older coal plants reach the end of their useful lifespan, it’s cheaper to replace them with new wind farms than new coal plants.

Rep. Franz’s bill, though, would slam the brakes on clean energy job creation. It’s not the first anti-clean energy bill he’s introduced, either. His HB 4499 would ban offshore wind development, yet he supports oil drilling in the Great Lakes. It’s obvious why Michiganders oppose Great Lakes oil drilling - just remember the BP Deepwater Horizon oil spill - but it’s not clear why anyone would oppose wind turbines on the lakes. Maybe he’s worried they’ll spill wind into Lake Michigan. Northern Michigan deserves better.

Even Michigan’s electric providers oppose HB 5447, so it’s unlikely to go anywhere. This bill was so bad and our response so swift that it took less than 48 hours to kill it. Bills like these point to one very large truth, though: the legislature cannot be trusted with our clean energy future. Thankfully, the 25% by 2025 ballot proposal allows the citizens of Michigan to take control of their own future and vote it directly into the Michigan Constitution. Rather than politicians like Rep. Franz telling you that you can’t have clean energy, this ballot proposal allows you to tell your politicians that you want clean energy and the manufacturing jobs that come with it.

When bills this dangerous and ridiculous are introduced, we will often ask readers like you to send a message to your congressman. We ask you to take action. In this case, though, the action needed is for you to do everything you can to get 25% by ‘25 on the November ballot, and to vote for it once it’s there.

Sign the petition when it comes your way. Contact us to find out how you can help gather petition signatures. Talk to your friends about this ballot proposal. Write a letter to the editor of your local newspaper. Donate to Michigan LCV to help us spread the word and keep on top of bills like these so that we can meet them with the swift response that killed this one. In fact, if you donate at least $15, we'll send you a pint glass proclaiming your love for the Great Lakes. 

Only by taking our clean energy economy out of the hands of politicians and putting it into the hands of Michigan citizens can we be sure that bills like Rep. Franz’s never stall Michigan’s clean energy manufacturing future. 
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Missing Winter

3/6/2012

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This post was originally published on the Michigan LCV blog on February 22, 2012. Re-posted with permission. 
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Missing Winter
by Drew YoungeDyke

A
few weeks ago, the groundhog saw his shadow and we were told to expect six more weeks of winter, to which I replied, "what winter?" 

Ann Arbor is expected to get up to five inches of snow on Friday, and I say it's about time. I've been able to take my cross-county skis out exactly once this winter, and I had to carry them on the way back because the snow was already melting. It's not just my own outdoor recreation that's taken a hit this winter, though: businesses across the state which rely on outdoor tourism have taken a hit, too. 

A recent Gaylord Herald-Times article profiled Larry Sevenski, owner of a restaurant that caters to snowmobilers. He said that this winter has been the worst in over thirty years, and the National Weather Service announced that Gaylord is four feet short of its annual snowfall average this year. The Petoskey Winter Carnival was even cancelled last week due to a lack of snow (they'll try again on Saturday). 

This unusually mild winter could be trouble for wetlands, too. This CBC Canada article quotes McMaster University wetland ecologist Pat Chow-Fraser who warns that low ice cover on Lake Superior allows more water to evaporate and less to flow into the lake's coastal wetlands, which could affect spawning rates for Great Lakes fish. 

I'm not a scientist, so I'm not qualified to attribute the specific events of this winter to climate change. The Union of Concerned Scientists are scientists, though (it's right there in the name), and they predict that climate change will result in wetter winters with more rain and snowfall, but less ice and snow cover due to faster melts, as detailed in this Huron River Watershed Council newsletter. 

In short, we can expect more winters like this if we keep filling our atmosphere with heat-trapping greenhouse gases. That may seem alright to folks who dislike snow, but then why live in Michigan if you don't like snow? It's not just snow that will be missing, though: climate change means fewer wetlands for ducks, warmer streams devoid of coldwater trout, and more diseases in deer herds. 

97% of climate scientists agree that climate change is happening and that it is caused by burning fossil fuels. All is not lost, though. Fuel efficiency standards agreed to by the EPA and the Big Three auto-makers, among others, will reduce emissions from the cars we drive and the EPA's mercury standards will reduce emissions from coal plants. We can reduce those even more in Michigan, while creating tens of thousands of jobs and making the air we breathe healthier, by passing theRenewable Energy Standard proposed for this November's ballot. 

All it will take is for us to start listening to scientists more often than groundhogs about climate and weather. 

Help Michigan LCV pass the Renewable Energy Standard by becoming a member, making a donation, or signing up for updates. 


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    Drew YoungeDyke is an award-winning freelance outdoor writer and  a Director of Conservation Partnerships for the National Wildlife Federation,  a board member of the Outdoor Writers Association of America, and a member of the Association of Great Lakes Outdoor Writers and the Michigan Outdoor Writers Association. 

    All posts at Michigan Outside are independent and do not necessarily reflect the views of NWF, Surfrider,  OWAA, AGLOW, MOWA, the or any other entity.


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