A 2022 report titled Promises Half Kept at the Half Century Mark, by the Environmental Integrity Project, released on the Clean Water Act’s 50th anniversary said the law is “falling short of its original goals.”
Michigan, for example, has the 4th largest number of impaired lakes, reservoirs and streams assessed for water contact recreation in the U.S.
The report cited U.S. Environmental Protection Agency budget cuts, a failure to enforce permit requirements and weak management of water pollution as barriers to reaching the CWA’s goals.
In 2022, University of Detroit Mercy environmental law professor Nick Schroeck said the CWA is “stuck in neutral” and is in need of an update, Planet Detroit reported. Schroeck cited regulations that lack urgency and that it has been reactive to new chemicals of concern that enter the marketplace.
To gain a better understanding of the state of environmental law and how it has evolved, Great Lakes Now queried three environmental law attorneys about the evolution of the practice in the last 20 years.
For perspective, in 2004 George W. Bush was the president, climate change was an issue but substantive action on it was more than a decade away as were the Flint and Toledo drinking water crises.
Aged bedrock laws
Environmental law attorney Mark Templeton says his students provide ample reasons to be optimistic about the legal system’s ability to take on the challenges the future will present.
“It is an exciting time to work with students because of their interest and hopes for the future,” said Templeton, a Clinical Professor of Law and Director of the Abrams Environmental Law Clinic at the University of Chicago.
Among the issues these future attorneys will confront are climate change, environmental justice and clean water. According to Templeton, they are showing an increasing interest in energy issues including “an equitable clean energy transition.”
The emerging laws still have unresolved areas and students are interested both in addressing those areas of legal uncertainty and in applying well-established aspects of laws to the seemingly endless set of environmental and energy challenges, according to Templeton.
But in spite of the heightened interest in environmental law by today’s eager students, obstacles to align laws with twenty-first century challenges remain entrenched.
Perhaps the biggest barrier to improving the legal system is that the bedrock laws, the Clean Water and Clean Air Acts, are now over 50 years old. They are not equipped to effectively deal with issues like climate change, agricultural pollution and toxic contaminants like PFAS (forever chemicals”) that have emerged.
A striking example in the Great Lakes region is that the Clean Water Act (CWA) does not regulate the nutrient runoff from farms that flow to Lake Erie and contribute to toxic algal blooms.
In addition to Templeton, Great Lakes Now asked Traverse City attorney Jim Olson and Chicago attorney Debbie Chizewer to comment.
Olson is founder of the not-for-profit For Love of Water and is best known for his successful legal challenge to Nestle’s taking of water for bottled water. He is the author of the newly released novel, People of the Dune which contrasts legal duty with ethical responsibility.
Chizewer is the managing attorney for Earthjustice in the Midwest focused on climate, healthy communities and representing Tribal Nations on the Line 5 oil pipeline issue.
State of environmental law
On the state of environmental law in 2024, Templeton and Chizewer focused on the advances made in the last 20 years.
“There have been some important strides in environmental law during the past couple of decades,” Templeton said.
He cited the administrations of President’s Obama and Biden’s willingness to put forth rules regulating emissions from coal-fired power plants, heightened standards on tailpipe emissions and action on lead service line replacements.
For its part, Congress passed major legislation to address the environmental challenges that water systems face and that made investments in renewable energy, according to Templeton.
And Templeton “believes there are more organizations litigating than in the past,” citing Earthjustice as an example.
Chizewer acknowledged the progress brought via Clean Water and Air Acts but also commented on environmental injustice.
“Throughout this same time period, overtly racist government decisions placed Black and brown communities in harm’s way – from building public housing on contaminated land in East Chicago, Indiana to concentrating industry in the Black neighborhoods of Flint,” Chizewer said.
Regarding waterways, policies in place allowed the storage of coal ash on the shores of Lake Michigan and on the wild and scenic middle fork of the Vermillion River, Chizewer said.
Chizewer’s work includes representing Tribal Nations on Line 5 but she declined to comment on how they might view the state of environmental law.
Instead saying there has been progress in the Biden administration on the issues Tribal Nations face. However, significant issues remain including that “Tribes are disproportionately vulnerable to the climate crisis” and that the “the US government has so far failed to take decisive action to shut down Line 5.”
For Traverse City’s Olson, environmental law has been a mix of the good and bad in the last twenty years.
He is critical of the U.S. Supreme Court for “narrowing the opportunity for standing, the right of a party to bring a lawsuit for environmental organizations.”
In Michigan, Olson pointed to action in the waning days of the 2018 lame duck legislative session where a law was passed that weakened protection for wetlands. Michigan had previously been known as a leading state on wetland management.
That same session produced legislation that created an authority to oversee the operation of a controversial tunnel replacement of the aged Enbridge Line 5 pipeline that traverses the Straits of Mackinac. Former Republican Gov. Rick Snyder supported both bills.
The good news for Olson is that in 2019 incoming Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats, acted on concerns about Line 5’s continued operation. Whitmer eventually revoked the easement that allowed Line 5 to operate and Nessel’s 2019 lawsuit to shut it down remains active in the courts. Enbridge continues to operate Line 5 and Canada has invoked a 1977 treaty with the U.S. to support its continued operation. Negotiations between the countries are ongoing.
The Whitmer administration has since taken action to facilitate the tunnel replacement for the existing Line 5 but federal approval is not yet final.
Closing arguments
Great Lakes Now asked the attorneys to point out environmental wins and losses in the past 20 years and for random thoughts on environmental law.
“Slowly but surely, we as a country are making progress on some of the big public infrastructure systems that have caused problems for water quality,” Templeton said. He cited publicly owned wastewater treatment plants, public drinking water systems, and lead pipes as examples. On air quality, “no one is building coal-fired power plants anymore” which he said has huge public health benefits.
In the loss column, Templeton pointed to “environmental justice communities that continue to suffer disproportionate environmental and public health harms.” And that some industry operators continue to violate the law without sufficient enforcement to bring them back into line, he said.
Olson took a global view saying, “the Earth faces a global water crisis that includes the Great Lakes.” He cited a climate crisis that is accelerating rapidly, water-level swings and the continued introduction of permitted levels of toxic chemicals.
The environmental laws from the 1970’s worked well until the year 2000, but since then the problems have outgrown the laws that were enacted to address them, according to Olson.
“It is grave error to retreat from our existing environmental laws; it is even more grave to refuse to enact multimedia, integrated laws and regulations that embrace and can address these systemic effects,” Olson said.
Earthjustice’s Chizewer debunked a myth and called for collaboration and action.
It’s a myth, Chizewer said, that our environmental problems are too big to fix and said change is possible when we work together.
“You can take meaningful action by connecting with local environmental justice groups, showing up to vote for good judges, and making your voice heard before regulators,” Chizewer said.
Post-election uncertainty
In spite of slow but sure progress and eager law students, the election of Donald Trump as president casts an air of uncertainty on the direction of environmental law and policy.
The non-partisan publication LAW360 released a post-election assessment that said “environmental law experts are looking for (Trump) to quickly depart from the Biden administration’s priorities and return to the form established in his first administration.
The experts cited taking a lax approach to industry enforcement, rolling back climate change rules, reducing stringency of regulations and deemphasizing environmental justice as examples of the Trump administration reverting to its previous form.
Templeton largely agreed with LAW360’s assessment but cautioned that “one can’t always predict how an administration will react to particular problems.” Templeton suggested paying attention to Trump’s pick to lead the EPA saying “people are policy” and the administrator and senior staff will influence the environmental direction of the Trump administration.
Templeton cited Trump’s first presidency where EPA went counter to expectations in East Chicago, IN, a heavily industrialized, environmental justice community.
Working with the Department of Housing and Urban Development, then EPA Administrator Scott Pruitt visited and put a spotlight on remediation of a site contaminated with lead and arsenic that was home to 3,000 residents.
Clean up of the site is ongoing according to the EPA website.
Catch more news at Great Lakes Now:
What a Trump vs. Harris presidency might mean for the Great Lakes
Featured image: Global natural law and environmental judgment. (Photo Credit: Tanankorn Pilong/iStock)
