Arthur Siegal
Partner, Jaffe Raitt Heuer & Weiss

Arthur Siegal's Environmental blog is an engaging perspective of changing trends in environmental law and its impact on economic development in Michigan and across the country.


Why Not a Regional Water System?

There have been a flurry of recent articles about Oakland and Macomb counties refusing to sign on to emergency manager Kevyn Orr’s plan for a regional water authority. Oakland County Executive L. Brooks Patterson has been quoted as saying no deal is better than a bad deal and how can one disagree with that?  However, a regional authority is clearly the right move and every single one of the players at the table should know it. It was the right move for the Detroit Zoo, Cobo Center, the DIA, and now for the water and sewer systems that we all use in southeast Michigan.

What’s infuriating is that we all know this, but it seems less than clear that such a system will be implemented. The current system needs ...

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Detroit Water Dept. Must Reorganize to Survive

Did you ever think about where your water comes from and what may be in it? I have a good friend who never thought about the fact that there was a finite amount of water and that certainly some of what came out of his tap had, at some point (possibly in the distant past), likely passed through someone else’s bladder. What that means is that proper treatment of wastewater may have a serious impact on drinking water quality and public health.

Just this week, rumors have surfaced that the Detroit Water and Sewerage Department may be cutting 40 percent of its staff — a reorganizing of the system which, if successful, could lead to lower operating costs, lower borrowing costs and may make a multi-county regional deal more ...

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What Lies Ahead for Michigan Brownfields?

For the last 20 years, we have seen the innovative and aggressive Michigan brownfield liability and environmental laws move redevelopments forward. While some of these projects have been big, all of them have been what I like to characterize as “low hanging fruit.” 

This makes sense because, for all the incentives available, at the end of the day, if you rehab a building in a location where there is no business, that no one wants to occupy, the incentives available won’t make the difference. While not easy to redevelop, these sites have been redeveloped while other major environmental sites (either very large, very contaminated or in less desirable locations) continued to lay fallow.

The ...

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Stay Calm: Regulation on Wetlands Not in Jeopardy

Last month, when the EPA announced it will be holding a hearing on Dec. 11 in Lansing regarding Michigan’s wetlands law, a few people may have panicked thinking the EPA was  ready to withdraw its delegation of wetland regulation in the state. 

Michigan is one of only two states to have been delegated authority to administer the federal wetland regulations within their borders. (The state was the first, earning this designation in 1984).  This summer,  the Michigan Legislature enacted Public Act 98, amending multiple parts of the Michigan environmental code regarding wetlands. Some of the changes stemmed from a 2008 audit by the EPA of the Michigan wetland program which raised some 20 concerns that the ...

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Michigan's Ticking Time Bomb for Property Owners

What happens when the rules for environmental protection suddenly change? Tens of thousands of blissfully ignorant property owners may be about to find out. 

For the last 18 years, Michigan has touted its Baseline Environmental Assessment (BEA) program as the best in the U.S. for land purchasers. The program is designed for persons who are buying, leasing, or foreclosing on a contaminated property. It allows them to not be held liable for the property’s cleanup, provided they did not cause the contamination and if they conducted a BEA and disclosed the results to the Michigan Department of Environmental Quality.

The BEA program has been viewed as a virtual “get out of jail free” card ...

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Funding Environmental Initiatives in the Age of Austerity

When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.' — Lewis Carroll, Through the Looking Glass

As demands for city services increase, costs go up and tax revenues flatten or fall, what is a municipality to do?  In most places in Michigan, politicians seem to have decided that even to suggest more taxes is the kiss of death. For example, everyone agrees the state's roads need work. Gov. Rick Snyder proposed increasing the gas tax and registration fees some eight months ago and it has gone nowhere. More appalling is the lack of forward progress on some solution. Everyone agrees that better roads save lives, gas and money and yet there is ...

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Earth Day at 43 — What Have We Learned?

Today is Earth Day (April 22) and recent studies have reflected that Americans’ focus on the environment has declined. A recent study regarding so-called “millennials” (those born after 1982) reports that these young people considered goals relating to money, image, and fame are more important than those related to self-acceptance, community, empathy, charity, and — most surprising to me — taking action to help the environment and save energy. Perhaps this is not unexpected given the attention to the economic crisis we are still working out of, coupled with the technological, quick gratification world we find ourselves living in. However, given the emphasis that schools and the media place on educating and promoting the importance of ...

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What's next for Detroit Water Department?

Lost among the hubbub about the U.S. Supreme Court’s hearings on gay marriage, the appointment of an Emergency Manager for Detroit, and Kwame Kilpatrick being found guilty, yet again, is the fact that after almost 36 years, the Detroit Water and Sewerage Department is no longer under the supervision of a federal judge. On March 27, Judge Sean Cox entered an order closing the 1977 case.

This case started when I was in high school, when Jimmy Carter was president and gasoline was 62 cents a gallon. The EPA alleged that the  department was violating the Clean Water Act by allegedly failing to treat sewage enough to meet the department's permit limits. In short, the EPA alleged that the DSWD was discharging water to the Detroit River that was not ...

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Finding Funds to Support Energy Research

President Obama last week announced his plans for an Energy Security Trust to fund $2 billion in research into energy technologies to help the United States, among other things:

• Get off oil altogether (particularly foreign oil);

• Develop clean coal technologies; and

• Improve efficiencies in the production of natural gas (thereby reducing greenhouse effects).

This hits at two interesting sweet spots. First, at long last, someone is finally relating energy to national security; and second, it focuses on something most everyone agrees government should be supporting — basic research (versus that nasty old picking winners and losers). As a concept I really like this and think it’s the sort of ...

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Lower Lake Levels on Great Lakes Effects Commerce

Here in Michigan, we are aware of how lake levels have dropped. Levels of the Great Lakes have been lower than average for the last 12 years. Lakes Michigan and Huron are particularly low.

Can we attribute this to climate change/global warming? I have no idea. Federal recordkeepers note that water levels have dropped below average before — including in the mid 1960′s and during the entire 1930′s — often much lower than average compared to the last 12 years.

The lakes levels are getting some attention including multiple theories as to the reasons why including climate change, recent drought conditions, warmer water temperatures, increased evaporation, loss of ice cover, and changing precipitation patterns (all of ...

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Be Careful What You Wish For

A week ago, Paul Ryan and many other members of Congress began to talk about calling President Obama's bluff and allowing the budget sequestration voted into effect last year to occur.  If budget sequestration takes effect on March 1, 2013, according to a September 14, 2012 report from the White House Office of Management and Budget ("OMB"), the EPA will face a projected $716 million budget cut.
The OMB projected that the following programs would face cuts of 8.2%:
— Superfund (approximately $121 Million)
— State and tribal assistance grants (approximately $293 Million)
— EPA's program and management account (approximately $220 Million)
Other programs facing ...

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Is President Obama Serious About Climate Change?

President Obama dedicated a whole paragraph of his second inaugural address to the issue of global climate change. In part, he said: "We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms. The path towards sustainable energy sources will be long and sometimes difficult."

Many believe that this is the issue of our time.  Recently, a 60-person Federal Advisory Panel released a draft climate assessment report for public review that made some fairly dire predictions. For the Midwest, ...

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Fracking in your backyard?

Michigan recently auctioned off mineral (oil and gas) leases, and some were in neighborhoods in and around Oakland County’s tony lake shores, the State's wealthiest county. This was accompanied by a slew of concerned emails. So, how did this happen; what does it mean; can the property owners stop it; and can this happen in my backyard?

Interestingly, the State retained the mineral rights when it conveyed the property; in some cases, it is tax reverted property. In some cases, the properties have been tagged for “development,” which means a well may go there and in others, not.

Can it happen to you?  Maybe — check your deed. If someone (the State included) ...

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Earth Day 2012: Spanning Generations

Earth Day 2012: Spanning Generations

A recent study released regarding so-called “millennials” (those born after 1982) reported that these young people considered goals relating to things like money, image, and fame more important than those related to self-acceptance, community, empathy, charity, and, most surprising to me, taking action to help the environment and save energy. Perhaps this is not so surprising given the economic crisis we are still working our way out of, coupled with the technological, Jersey Shore media world our young people find themselves living in. However, given the emphasis on the environment in our schools and media, it still seems somewhat disturbing.

Given that Earth Day is this weekend, there are sure to be a plethora of lists to “do ...

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Consumer Energy vs. DTE Energy

I’ve already blogged about DTE Energy’s statutorily mandated surcharge and their voluntary program to help subsidize alternative energy investments. I wasn’t impressed by DTE’s logic in asking me to contribute to their investments.

Now comes word that Consumers Energy would like to decrease customer bills by $1.80 per month by reducing that alternative energy power subsidy — if state regulators approve the utility’s request to decrease the monthly surcharge to 70 cents.

Consumers reports that is has almost 80,000 acres lined up to develop two wind farms: the Lake Winds Energy Park near Lake Michigan in Mason County and the Cross Winds Energy Park in Tuscola and Huron counties in the Thumb region.

As we discussed previously, the ...

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Federal Wetland Regulation — Part 1 — the Nexus must be significant

A very divided U.S. Supreme Court made the 2006 Rapanos decision regarding federal jurisdiction over wetlands. Four Justices, led by Justice Scalia, held that the federal government only had jurisdiction over wetlands where there was a regular presence of water, and where one cannot tell where the wetlands ended and a navigable waterway began.
Four other justices, led by Justice Stevens, were content to find jurisdiction even if the only connection between a navigable waterway and the wetlands was subterranean. The last Justice, Kennedy, agreed with Scalia that there was no jurisdiction in the Rapanos case, but applied his own test — that there could be jurisdiction when there was a "significant nexus" between the wetlands and a ...

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