Spring 2020

Vol. 37, No. 2, Issue 107

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. 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, 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. 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.

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by Monica J. Stover, Barnes & Thornburg LLP

In today’s increasingly eco-conscious society, “green claims,” i.e., advertising claims touting a product or service’s environmental benefits, remain on the rise among marketers. Also increasing is consumer demand for “environmentally friendly” products as consumers become more aware and educated about environmental issues that directly affect our planet. Needless to say, marketers’ green claims have a significant impact on consumers as they seek out products and services that they perceive to be less harmful and more preserving of our planet.

With consumers being drawn more than ever to products that help them be more environmentally responsible, green advertising claims are an important marketing tool for many companies across various industries. Putting their trust in the companies that advertise these “eco-friendly” products and services to them, consumers expect not to be misled into believing a product is more eco-friendly than it actually is. The Federal Trade Commission (FTC) has taken steps to help marketers avoid making deceptive advertising claims by providing several useful resources, in particular, its Guides for the Use of Environmental Marketing Claims, known as the “Revised Green Guides.” The basic principles of the FTC’s Revised Green Guides are that an advertisement should be truthful, not misleading or deceptive, and have adequate substantiation to support all reasonably interpreted claims, and the Guides follow the FTC Act’s truth-in-advertising principles.

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Don’t Forget About our Webinar Library

Many of ELS’s webinars are available in the ELS online library under the webinar tab. They make for good viewing during shelter-at-home.

Here’s a list of ELS’s currently available webinars.

• 2019
  • Duck! Insiders Review the Late 2018 Legislation
  • The Challenging Effects of Dynamic Great Lakes Shorelines on Zoning & Planning in Coastal Communities
• 2018
  • A Closer Look at the Endangered Species Act
  • A Legal Perspective on PFOS/PFAS Contamination Issues
  • Examining Shared Environmental Interests Webinar
  • Updated-Lender’s Perspective on Environmental Issues
• 2017
  • Endangered Species Act and Land Use Webinar
  • Environmental Layer’s Next Frontier—Vapor Intrusion
  • Using SBM Connect to Connect with Environmental Law Section Lawyers
  • Vapor Intrusion Issues in Transactional Due Diligence and Due Care

ELS still has the capability of hosting webinars, and in fact, this might be a very good time to do so. If you'd like to put on a webinar, please contact Mary Anne Parks directly at parks.maryanne@gmail.com for assistance.

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by Saulius K. Mikalonis, Senior Attorney, Plunkett Clooney; Leader of Environmental, Energy, and Resources Law, and Cannabis Law Industry Groups

"Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs."

Sustainability is changing how governments and corporations respond to their operations to maintain profitability and operational ability while considering impacts to environmental and societal interests. Virtually every major corporation in the world has some form of sustainability initiative that considers their operations’ effects on the triple bottom line: people, profits, and planet. For example, Ford Motor Company recently issued its 2018/2019 Sustainability Report, representing its 20th year of issuing such a report, which outlines the company-wide efforts and progress towards its sustainability goals. Given that the global legal cannabis market is estimated to be $73.6 billion by 2027, those in that industry will likely face the same pressures to make their businesses more environmentally and socially sound.

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ELS is asking for information on any opportunities for students who have been left without a summer internship due to COVID-19.

• Are you or your practice willing to expand your externship class to consider some COVID-19 hardship applicants?
• Can you host a virtual law student volunteer intern this summer?
• Can you provide even a few substantial research assignments where students would be able to work closely with you as they develop a meaningful writing sample?

Any of the above opportunities would be an enormous assistance. Please email Amanda Urban at ajurban@umich.edu if you can help.

by Elaine Sterrett Isely, JD, MS

Director of Water Programs, West Michigan Environmental Action Council and Chair of the City of Grand Rapids Stormwater Oversight Commission

Municipalities are required under the federal Clean Water Act to minimize polluted discharges to our waterways, including stormwater runoff and combined sewer overflows. In Michigan, the Department of Environment, Great Lakes, and Energy (EGLE) is authorized by the U.S. Environmental Protection Agency to manage the National Pollution Discharge Elimination System permit program. Phase I permittees include industrial facilities and municipal separate storm sewer systems (MS4s) serving populations greater than 100,000, while Phase II permittees include MS4s serving populations of 100,000 or less and construction sites disturbing 1–5 acres. The Michigan Natural Resources and Environmental Protection Act charges EGLE, formerly Department of Environmental Quality, with the protection and conservation of the waters of the state, and grants it control over the management of pollution of surface and underground waters of the state and the Great Lakes.

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SBM has provided a list of informational resources related to legal practice during shelter in place and state of emergency orders:

Guidance from local courts—there’s a lot of information coming at you from Michigan's trial courts, so we are helping keep it straight

Text of documents related to COVID-19—because you need to know exactly what the law actually says

Guidelines from our ethics department—while much has changed during the pandemic, the Michigan Rules of Professional Conduct are still in full effect

Guidance on remote notarization and witnessing under EO 2020-41—this checklist includes everything you need to do before, during, and after a remote notarization or witnessing

The Board of Law Examiners anticipate a decision from the National Conference of Bar Examiners on or around May 5, 2020, regarding the administration of a July bar examination and the possibility of a fall bar examination. California has already decided to host their summer bar exam remotely.

The Michigan Supreme Court has issued several orders and guidance in light of COVID-19. Most can be found on the Court’s website. A particularly helpful one that is updated regularly is the Frequently Asked Questions and General Guidance Regarding Emergency Court Response to COVID-19. The Court continues to hear oral arguments for pending cases virtually on its YouTube channel.

If you are curious whether your case may be moving forward anytime soon, see the judiciary’s Process for Triaging Case Actions During the COVID-19 Crisis. Each list linked below helps courts identify cases most in need of processing, while identifying lower priority matters that can be addressed as courts return to full capacity. The lists below prioritize cases and hearings by case type and include the associated authority.

• Circuit
• ​District​
• Probate​

The above image from the City of Grand Rapids website is a teaser for an article inside this issue of the MELJ—themed sustainability. Each article tackles a different legal topic that involves issues of sustainability. At a time when nothing seems stable, take a look inside this issue to consider how environmental lawyers are addressing sustainability in a variety of legal contexts.

• The next issue is in Summer 2020. Write on a difficulty you have encountered in your practice to help fellow practitioners OR write about a topical environmental event or issue that interests you.
• Email submissions or inquiries to Amanda Urban at ajurban@umich.edu
  • 2-10 pages, 12pt Times New Roman, Michigan Appellate Manual footnotes

Let us Know What you Want to See in the MELJ

• The MELJ is a publication intended to serve the members of the Environmental Law Section of the State Bar of Michigan. Do you have an event upcoming? Please let us know the details and we will be happy to feature it.

• All Articles (75)
• Air Issues (2)
• Announcements
• Chair's Report
• Chemicals & Toxic Substances (10)
• Court Opinions (11)
• Editor's Letter
• Energy (6)
• Events
• Legislation (16)
• Viewpoint (6)
• Water Law (9)

Find Us on

Chair
Tammy Helminski
tammy.helminski@btlaw.com

Editor, Michigan Env. Law Journal
Amanda Urban
ajurban@umich.edu

Section Administrator
Mary Anne Parks
parks.maryanne@gmail.com

Officers & Council Members PDF

Committees

ELS Website

Environmental Law Section dues are only $30 and FREE for law students and new members to the bar. To join, please complete a section membership application or attorneys can join online by logging into the Bar's member area and selecting Section Membership.

• Amanda Urban
• Allison Collins
• Nicholas Leonard
• Joni Roach
• Lydia Barbash-Riley

Join: The MELJ is a team effort and would not be possible without the hard work of its contributing and associate editors, as well as the State Bar administrative staff. Consider joining the MELJ Editorial Committee. Contact Amanda Urban if interested.

The Michigan Environmental Law Journal is a publication of the Environmental Law Section of the State Bar of Michigan and exists to provide the Section’s membership a forum for sharing information and discussing environmental topics relevant to the legal community in the State. To that end, the MELJ encourages the open exchange of legal discourse on a variety of environmental topics, but does not endorse particular viewpoints or positions unless otherwise recognized by the Section. Any opinions espoused by the articles contained within are attributable to solely their respective authors and are not representative of the SBM, the Section, or its members generally. Publication is neither an endorsement nor a rejection of a particular position by the Environmental Law Section.