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Chair’s Report from James Enright on Meeting Challenges


James EnrightPublished in Michigan Environmental Law Journal, Spring 2020, Vol. 37, No. 2, Issue 107 [view full issue].
Cite: 37 Mich Env Law J 2 (2020)

I hope this finds all of you well. I had planned to write about challenges facing Michigan and environmental lawyers—and that was before the coronavirus pandemic erupted. Michigan’s environmental challenges have not gone away, although our recent focus, understandably, has been elsewhere. These challenges, some present, some further off, include:

Rising waters. The Great Lakes are all rising, with Lake Michigan setting a record in March.[1] Inland waters are also affected, and even the ground in many areas is close to saturation. Waterfront homes, roads, and other infrastructure are threatened, and shoreline activities are being curtailed, all challenging our ability to protect these resources in conjunction with their human use. At least four parts of NREPA are involved,[2] as well as state and federal administrative programs. And these protections have never been administered in such a time-sensitive situation.

Climate change secondary impacts. You are all especially familiar with existing and projected effects of climate change. Michigan, at least, is projected to retain a temperate climate for several decades until at least 2100, as well as having abundant fresh water and being well above rising oceans.[3] Sounds like a pretty nice place to move to, especially in light of projected conditions elsewhere, and several million people may wish to become Michiganders. If that happens, the pressure to develop will be intense, precipitating another string of resource use conflicts that will be decided in the Legislature, agencies, and judicial system.

More emerging contaminants. PFAS, ethylene oxide, 1,4-dioxane. There will be something else after them, and something else after that. Because issues with some of the major PFAS compounds are impacts from their intended use, rather than from waste disposal as that term is commonly used, prevention of additional PFAS-type situations may involve toxic substance evaluation and control in addition to waste management to an extent that has not been attempted yet in this country.

Legal representation of people of modest means. The usual participants in environmental law matters are governments, businesses (predominantly larger ones), interest organizations, and sometimes well-off individuals. In the large scheme, the interests of most individuals are to be protected by governments, but this fails when individual interests don’t align with an existing cause of action or when the government itself is part of the problem.

Legislative expertise. Michigan’s term limits have resulted in short-term legislators who are unable to develop expertise before moving on, and a loss of institutional memory. An example of the latter may be bills seeking to return part of the environmental cleanup statute to its pre-1995 status, undoing a successful reform.[4] Unless term limits are reformed, environmental law expertise lies with practitioners, including the AG.

Changes in the practice. Environmental law has been one of the most fact-intensive practice areas for over 100 years. We are likely on a steeply-rising curve of data gathering and analysis, and practitioners will have to keep up. The scope of the practice has been expanding from its core of common law and air-water-waste protections to include more work in energy generation and distribution, and regulation of outdoor applications of biotech may come next. And there is an ongoing demographic shift in the composition of the environmental law bar.[5]

Environmental law has clearly not been standing still and these challenges suggest that the pace of change is going to pick up. Who is going to help you meet these challenges? Where can you go for continuing education, especially in a state without mandatory CLE?

The Environmental Law Section provides the continuing education you need to practice in Michigan. And, if this Section is to meet that need, practitioners should proactively make their needs known to the Section’s leadership and Council and, in turn, share their own expertise in the educational effort.

Finally, returning to our current situation for a moment. Queen Elizabeth II best summarized our position in her April 5 speech, saying “We should take comfort that while we may have still more to endure, better days will return. We will be with our friends again. We will be with our families again. We will meet again.”

We will.[6]

[1] U.S. Army Corps of Engineers, Detroit District, Monthly Bulletin of Lake Levels for the Great Lakes, p 2 (April 2020) (“New record high monthly mean water levels were set on Lakes Michigan, Huron, St. Clair, and Erie in March 2020. All three lakes surpassed their previous records set in 1986.”)

[2] NREPA: Part 301, Inland Lakes and Streams MCL 324.30101; Part 307, Inland Lake Levels, MCL 324.30701; Part 323, Shorelands Protection and Management, MCL 324.32301; Part 353, Sand Dunes Protection and Management, MCL 324.35301; Part 31, Floodplains and Water Resources Protection, MCL 324.3101; and Part 303, Wetlands Protection, MCL 324.30301. The author also suspects that many environmental practitioners will become more familiar the Drain Code, MCL 280.1 et seq.

[3] See, e.g., University of Michigan & Michigan State University, Great Lakes Integrated Sciences and Assessments: Great Lakes Regional Climate Change Maps. See also Grist staff, We Broke Down what Climate Change will do, Region by Region (Nov. 29, 2018) (“The Midwest may actually experience migration into the region because of climate change.”) (quoting Professor Maria Carmen Lemos of the University of Michigan’s School for Environment and Sustainability).

[4] House Bill No 4212, Michigan Legislature (2019)

[5] Most prominently, the decline in section participation generally, and the departure of the Baby Boom generation from practice. Compare State Bar of Michigan Section Demographics, p 101 (2014-2015) with State Bar of Michigan Section Demographics, p 89 (2019).

[6] Thanks to Eileen C. Enright for editing.