Summer 2019

Vol. 37, No. 1, Issue 106

Chair’s Report From Kelly Martorano

Kelly MartoranoI’ve said it before and I’ll say it again, the Environmental Law Section has the best members! Seriously, I am so happy to have the members of this Section as my colleagues and I am constantly impressed by the good work that all of you do. So far, 2019 has been a great year for the Section and I want to tell you about all of the value this Section has to offer its members.

First, the Environmental Law Section provides timely and informative webinars to our membership. Over the past year, the Section has hosted webinars to update members about legislative changes at the end of 2018 and on the effects of dynamic Great Lakes shorelines on zoning and planning in Michigan’s coastal communities. Second, the Environmental Law Section continues to organize and host excellent conferences. In April, the Section held its annual Air Conference in collaboration with the Michigan Manufacturer’s Association. The Section, in collaboration with the East and West Michigan Chapters of the Air and Waste Management Association, will also present the Fall Joint Conference again in November. The Conference includes numerous presentations by EGLE Program Directors and staff. Finally, the Environmental Law Section publishes the Michigan Environmental Law Journal (MELJ), which provides members with quality articles on various key topics pertinent to environmental professionals in Michigan. The MELJ is an important resource that is available to the current and future members of the Section.

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What’s Coming Up

Events of Interest to the Michigan Environmental Law Community

Environmental Law Section Annual Meeting
1:00–4:30 p.m., Sept. 18, 2019, State Bar of Michigan, Lansing

While the State Bar has discontinued the NEXT Conference, ELS will still be around this fall for your environmental needs. Join us for the annual Section meeting for some great programming and fellowship to follow at Lansing Brewing Company from 5:00–7:00 p.m.

SBM Annual Meeting
Sept. 25–27, 2019, Novi

The State Bar of Michigan will host its Annual Meeting at the Suburban Collection Showplace. The three-day meeting will include an inaugural and awards luncheon as well as a celebration of those practitioners who have been members of the bar for 50+ years.

Fall Joint Conference
November 14, 2019, Lansing

A cooperative effort of the Environmental Law Section and the East and West Michigan Chapters of the Air and Waste Management Association, the fall conference will be held at the Lansing Community College and will feature EGLE division chiefs.

ABA’s Section of Environment, Energy, & Resources Law Spring Conference
April 20–24, 2020, Chicago

Save the date and watch for registration. The ABA’s national environmental, energy, and resources law conference will be held here in the midwest this spring. Topics are sure to be relevant to the Great Lakes and Michigan practitioners.

What You Might Have Missed

Events of Interest to the Michigan Environmental Law Community

Webinar: The Challenging Effects of Dynamic Great Lakes Shorelines on Zoning & Planning in Coastal Communities
Aug. 6, 2019, Noon–1:00 p.m.

The Great Lakes and Inland Waters Committee of the Environmental Law Section hosted a webinar discussing the wide-ranging effects the at-or-above-record water levels of the Great Lakes have had on municipalities along the coast this year. University of Michigan Professor Dr. Richard Norton reviewed the coastal shoreline dynamics of the Great Lakes that make near-shore development, planning, and zoning so challenging. Professor Norton has conducted an extensive review of the zoning codes of coastal communities through the University of Michigan and the Michigan Coastal Zone Management Program. He presented the results of his survey as to how communities treat near-shore coastal areas, including land-use restrictions that manage development along the coast and the potential for “armoring” coastal real estate.

SBM ELS Summer Council Meeting
June 20, 2019, Grand Rapids

The Section Council members had their summer meeting at the offices of Barnes & Thornburg in Grand Rapids. The Council discussed plans for the upcoming annual Section meeting and was able to attend Environmental Tea hosted by Tammy Helminski and Suzanne Sutherland. Environmental Tea is a networking event for women in Michigan to share their passions for their careers in the environmental field.

Clearing the Air ConferenceClearing the Air Conference
April 11, 2019, Lansing

Sponsored by the Air Committee of the Environmental Law Section, the Michigan Manufacturers Association hosted the annual Clearing the Air Conference at its Lansing headquarters. The Conference featured an address by Peter Manning of the Michigan Department of Attorney General (left) and an insightful update into the ongoings of now-EGLE by Aaron Keatley, then Chief Deputy Director at the Michigan Department of Environmental Quality.
Program materials are available.

* Do you have an upcoming event that may be of interest to the environmental law community? Let us know and it may be featured in the next issue of MELJ.

If you are not already a member of the Environmental Law Section, join NOW
Membership dues are only $30 and FREE for law students and new members to the bar.

Q & A: The Michigan Environmental Rules Review Committee

Jeremy Orrby Jeremy Orr, Attorney, Safe Water Initiative, Natural Resources Defense Council

On April 5, 2019, Governor Gretchen Whitmer appointed me to serve on the state’s controversial Environmental Rules Review Committee (the ERRC). My appointment, which satisfies the statutory mandate that the ERRC have a representative from an environmental organization, came just two months after the state legislature overturned Governor Whitmer’s Executive Order, which attempted to abolish both the ERRC and the similarly situated Environmental Permit Review Commission (the EPRC). The creation, attempted abolishment, and preservation of the ERRC and the EPRC, which environmentalists and public health advocates nicknamed “Polluter Panels,” were quite contentious due to the placement of representatives from the exact industries that are meant to be regulated on both decision-making bodies. For some people, myself included, this was and still is a classic case of the fox guarding the henhouse. So why would I join a committee whose very existence I question? Simple: Because environmental advocates still need a voice at the table. But what exactly is this table and how does it function?

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Executive Order Reshapes Environmental Agency to Foster Engagement with Communities

EGLE LogoGovernor Whitmer signed Executive Order 2019-06 on February 20, 2019, creating the Department of Environment, Great Lakes, and Energy. Coincidentally, the Executive Order took effect on Earth Day, April 22, 2019, sixty days after its submission to the Legislature. Under the Executive Order, the former Michigan Department of Environmental Quality was reorganized as EGLE, assumed many activities of the former Michigan Agency for Energy, and created the new Office of Climate and Energy within EGLE.

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Viewpoint: Michigan’s New Lead and Copper Rules and the Dilemma for Municipal Water Suppliers

by Steven Chester, Senior Counsel, Miller, Canfield, Paddock and Stone PLC

Steven ChesterOn December 11, 2018, the Great Lakes Water Authority, Detroit Water and Sewerage Department, Oakland Water Resources Commissioner, and the City of Livonia (collectively referred to as the Plaintiffs) filed a Complaint for a Declaratory Judgment with the Michigan Court of Claims seeking to invalidate the recently enacted state “Lead and Copper Rules” (the “Rules”). The Complaint was filed against the Department of Environmental Quality. Plaintiffs are municipal water suppliers who collectively provide drinking water to well over a million customers. As public health agencies, Plaintiffs have spent decades insuring their customers receive safe, clean drinking water.

So why did Plaintiffs feel compelled to challenge the validity of the new Rules which require the removal of all lead service lines statewide in twenty years? What obligations do the Rules impose on municipal water suppliers that the suppliers find problematic? To appreciate the dilemma the Rules create for water suppliers requires an understanding of how and why the Rules came to be.

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Editor's Column: Incinerator Shutdown

Nicholas Leonardby Nicholas Leonard, Director of the Great Lakes Environmental Law Center

On March 27 of this year, Detroit Renewable Energy suddenly announced that it was permanently closing its trash incinerator. Since its inception, the incinerator has been mired in controversy. Originally owned by the city of Detroit, the construction of the facility was the subject of litigation and protests. Since 1991, the incinerator has operated under a number of private owners. The facility’s closure comes at a time when it was facing mounting legal pressure from both the Michigan Department of Environment, Great Lakes, and Energy, as well as private litigants regarding the facility’s odors and several violations of emission limits for certain chemicals into the air. In November of 2018, the Department of Environment, Great Lakes, and Energy sent Detroit Renewable Power notice of the commencement of an escalated enforcement action. In January 2019, the Great Lakes Environmental Law Center sent the owner of the incinerator a notice of their intent to file a citizen suit under the Clean Air Act for hundreds of alleged violations of air-emission limits.

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The Lake Erie Bill of Rights: Legal Challenges to Granting Rights to Nature

by Allison M. Collins, Associate, Foster Swift Collins & Smith, PC 

Allison M. CollinsOn February 26, 2019, the citizens of Toledo, Ohio, voted to amend their City Charter to include the Lake Erie Bill of Rights (“LEBOR”). The LEBOR is the latest effort to develop rights of nature laws within the United States by granting rights to ecosystems themselves, like Lake Erie. Relying on the Ohio Constitution’s Article 1, Sections 1 and 2, the LEBOR is premised on declaring an immediate emergency within Lake Erie’s ecosystem caused by global climate change, industrial discharge, and agricultural runoff that is not adequately addressed by state and federal laws. The irrevocable rights to be extended to Lake Erie include the lake’s right to exist, flourish, and naturally evolve, and the right to a clean and healthy Lake Erie.

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Law Student Spotlight: The Role Model of Environmental Protection

Law Student Spotlight: Elizabeth Burnsby Elizabeth Burns, J.D. Candidate 2020, Elisabeth Haub School of Law at Pace University

Thanks to scientific advancements, scientists can detect and track chemicals in the environment today that they could not before. For example, they have developed the ability to test for and identify chemicals in the parts per trillion range, allowing them to quantify substances previously understudied. When new evidence is published about these chemicals, one question always comes to mind: how are these chemicals going to be regulated? Sometimes, current statutes are already addressing these chemicals or have the means for doing so. Other times, statutes need to be amended to accommodate new scientific findings of toxicity. Especially at the federal level, this process can take years. If leaders and concerned citizens want a more expedited solution, they can turn to the statutes already enacted in their states. Many states have comprehensive environmental statutes that address issues of environmental pollution and human health.

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The Traces Left Behind

Traces Left Behind
A portion of “The Traces Left Behind,” a piece made of recycled silver in Maya Lin’s Flow exhibit, which showcases her fascination with the natural environment and can be found at the Grand Rapids Art Museum.

Law Student Internships

The summer 2020 law student internship application cycle is well underway for 1Ls and 2Ls. Current students consider applying at these great organizations who have expressed their interest in hosting students to the MELJ:

Great Lakes Environmental Law Center

National Wildlife Federation

Host a Law School Intern

Could your environment, energy, or natural resources practice use an extra hand? Law students from Michigan State, Wayne State, Detroit Mercy, Michigan, and Cooley are looking to learn more about environmental law in Michigan. Think back to your early days diving into environmental law and how you could have benefited from a summer of practical experience.

Your organization can offer an externship or internship for 1Ls or 2Ls, even if you are unsure about post-graduation employment opportunities.

If you are interested in accepting student resumes for possible internship positions, fill out this contact form.

Contribute to the MELJ

  • The next issue is in Winter 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
    • 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.

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Tammy Helminski

Editor, Michigan Env. Law Journal
Amanda Urban

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Mary Anne Parks

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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.

MELJ Editorial Committee

  • 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.