Tag: Michigan Supreme Court

Flow Water Advocates files Line 5 brief with the Michigan Supreme Court.

Published on November 17th, 2025 by - Blog Posts, News, Reports & Media Releases

November 17, 2025

[ DOWNLOAD: Flow Water Advocates Brief on Appeal (PDF) ]

 

Traverse City, Mich. — Flow Water Advocates (“Flow”) has filed a brief in its appeal of the Michigan Public Service Commission’s decision to approve a permit for Enbridge’s proposed Line 5 pipeline tunnel under the Straits of Mackinac. Flow’s appeal will be heard in the Michigan Supreme Court.

In September, the Court granted a landmark application for leave to appeal, paving the way for a review of the permit. Flow initiated the legal challenge, arguing that the MPSC failed to uphold its public trust obligations to protect Michigan’s waters and submerged lands. The Supreme Court’s order specifically directs the parties to address whether the MPSC is required to comply with the common law public trust doctrine in its permitting decisions.

Support Flow’s work to defend the Great Lakes.

In its brief filed on November 14, Flow addresses three central questions regarding the common-law public trust doctrine and the Michigan Environmental Protection Act (“MEPA”) and their application by the MPSC.

First, Flow argues that the plain meaning of the statutory text and the legislative history of MEPA binds all agencies to protect the air, water, and other natural resources and the public trust in these resources.

Second, Flow maintains that all agencies, including the MPSC, as arms of the state have an independent duty to comply with the State’s public trust obligations. As the sovereign title holder, the State may not violate the public trust by granting rights to use the Great Lakes bottomlands without regard to the trust’s restrictions. Thus, the effect of the common-law public trust doctrine is to safeguard the public’s interests in the waters and submerged lands of the Great Lakes. When the MPSC granted the tunnel permit without conducting a public trust analysis, it failed to fulfill its duty to assess potential impacts to the public’s paramount rights in the resources at stake.

Third, Flow argues that the MPSC cannot permit Enbridge’s tunnel project unless and until the Department of Environment, Great Lakes and Energy (“EGLE”) makes the requisite public-trust determinations under the common-law public trust doctrine and the Great Lakes Submerged Lands Act. In its brief, Flow articulates what a proper public trust analysis must look like to ensure that the proposed action — in this case, the siting and construction of an underground tunnel and pipeline through the bottomlands of the Straits — does not violate the State’s obligation to protect these public trust resources. EGLE cannot approve any proposed use of Great Lakes bottomlands, unless it has determined both that the adverse effects to the environment and the public trust will be minimal, and that there is no feasible and prudent alternative to the applicant’s proposed activity — such as the shutdown of Line 5. These mandatory determinations have not been made; therefore, the MPSC is required to deny Enbridge’s permit application under Michigan law.

Flow is represented in this case by its legal team and co-counsel, Kanji & Katzen, P.L.L.C. and Olson & Howard, P.C. The case will be heard alongside a related appeal from a coalition of the Little Traverse Bay Band of Odawa Indians, Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, and Nottawaseppi Huron Band of the Potawatomi, with the Environmental Law and Policy Center and the Michigan Climate Action Network.

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Flow Water Advocates is an independent 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, strategic communicators, and community builders, Flow is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and governments make informed policy decisions and protect public trust rights to water. Learn more at www.FlowWaterAdvocates.org.

Michigan Supreme Court grants review of Line 5 tunnel permit

Published on September 20th, 2025 by - Blog Posts, Reports & Media Releases

FOR IMMEDIATE RELEASE: September 19, 2025

Lansing, Mich. – The Michigan Supreme Court has granted a landmark application for leave to appeal, paving the way for a review of the Michigan Public Service Commission’s (MPSC) decision to approve a permit for Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac. This order, issued on September 19, 2025, also invites the State Bar of Michigan Environmental Law Section and Real Property Law Section to file amicus briefs.

Support Flow’s work to defend the Great Lakes.

For Love of Water (FLOW), a Traverse City-based environmental nonprofit recently rebranded as Flow Water Advocates, initiated the legal challenge, arguing that the MPSC failed to uphold its public trust obligations to protect Michigan’s waters. The Supreme Court’s order specifically directs the parties to address whether the MPSC is required to comply with the common law public trust doctrine in its permitting decisions.

“This is an incredibly important step forward for the protection of the Great Lakes,” said Flow Water Advocates Legal Director Carrie La Seur. “The public trust doctrine is a fundamental principle of Michigan law that must be considered in decisions that affect our natural resources. We are eager to argue this case and ensure that our state’s waters are protected for generations to come.”

The case will be heard alongside a related appeal from the Little Traverse Bay Bands of Odawa Indians, a testament to the broad legal and public interest in this issue. The Supreme Court’s decision to grant review signifies the high stakes and critical legal questions surrounding the Enbridge Line 5 tunnel.

Flow is represented in this case by its legal team and co-counsel.

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Flow Water Advocates is an independent 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, writers, and community builders, Flow is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and governments make informed policy decisions and protect public trust rights to water. Learn more at www.FlowWaterAdvocates.org.

Affirmed: EGLE’s authority to issue General Permit with stronger conditions for factory farms

Published on August 1st, 2024 by - Blog Posts, Reports & Media Releases

July 31, 2024: Michigan Supreme Court affirms EGLE’s authority to issue General Permit with stronger conditions for factory farms

Traverse City, Mich.— FLOW applauds the Michigan Supreme Court’s decision yesterday, rejecting the Court of Appeals’ dangerously flawed ruling in Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy. Unsatisfied with permit terms that have allowed their industry to pollute Lake Huron and Lake Erie to such an extent that, at one point, the City of Toledo had to shut down its municipal drinking water intake 2.5 miles from shore, Farm Bureau – the lobbying arm of an insurance agency – and its allies had sued to block slightly firmer permit standards.

The lower court held that EGLE’s 2020 Clean Water Act General Permit for Confined Animal Feeding Operations (CAFOs) should have been challenged by Farm Bureau as an unpromulgated rule. The General Permit is an environmental compliance document developed by EGLE, whose terms CAFOs agree to abide by under a Certificate of Coverage. Affirming this ruling would have meant that EGLE could never tighten its CAFO General Permit, because in 2006 the Legislature stripped EGLE of its authority to enact new water protection regulations. A bill is pending in the current Legislature to restore that vital governmental function.

Thanks to this protracted litigation, factory farms have enjoyed an additional four years of lax regulation, continuing to dump pollution into Michigan’s ground and surface water.

Now the Michigan Supreme Court has held that EGLE acted within its authority to amend the CAFO General Permit. Stronger permit terms will take effect immediately. Litigating every attempt to reduce factory farm pollution is standard procedure for Farm Bureau and industrial ag, but this time, thanks to Michigan’s spirited defense of our freshwater heritage, they failed.

FLOW has vigorously supported AG Nessel and EGLE in their defense of the 2020 permit, including submitting an amicus curiae (friend of the court) brief to the Michigan Supreme Court in partnership with the Environmental Law and Policy Center, the Michigan Environmental Council, the Environmentally Concerned Citizens of South Central Michigan, Freshwater Future, Food and Water Watch, the Michigan League of Conservation Voters, and the Alliance for the Great Lakes.

FLOW looks forward to prompt issuance of a more protective 2025 CAFO General Permit, so that Michiganders may begin to make up some of the ground lost on water quality due to this procedural odyssey. FLOW and its many supporters and allies remain committed to this goal, and we are grateful for the leadership of AG Nessel, Gov. Whitmer, and EGLE in this fight.

FLOW joins amicus brief in Michigan Supreme Court CAFO case

Published on December 14th, 2023 by - Blog Posts

By Carrie La Seur, FLOW Legal Director

My lungs remember. While I was an Iowa Environmental Protection Commissioner, I said yes to a chance to visit a relatively small hog confinement run, by the dad of one of my son’s best friends. It was just a few miles from our home in Mount Vernon, population 4,460, so I drove my old Celica out to the barns one frozen morning. I hadn’t been on another farm recently, and it was a small operation, so I didn’t have to “shower in” or put on different clothes, as many larger operations — also known as CAFOs, or Confined Animal Feeding Operations — require for biosecurity. We just walked through two sets of doors and stepped onto the steel grated floor of the hog barn.

If you’ve ever heard a pig squeal, you can imagine the effect of hundreds of pigs squealing, not in unison but total cacophony at the appearance of humans in their white-walled, tightly packed world. The smell hits just as hard, not so much the stink of manure as the nostril assault of pure ammonia from the urine pooled in vaults beneath your feet. My first instinct was not to breathe, then to take shallow, singed breaths, trying not to let the gas deep into my lungs.

We walked the full length of the barn, as the hogs rushed back and forth in their pens, Alan briefing me in steady, Iowa farmer tones on the life cycle of a confinement animal, the feed and medicine, waste handling, and the value of each pig to his bottom line, how carefully he watches them. This kind of small operation is unusual in the world of industrial livestock, where the number of farms has been dropping for decades, while the average size of an operation grows – and the size of its waste stream.

As a result, America’s farm country is adrift on a sea of manure. In Michigan alone, livestock confinements produce sewage equivalent to the state’s entire human population of 10 million, plus nearly another 4 million people. It’s like having Pennsylvania’s untreated sewage shipped to Michigan and spread on the ground and into our lakes, rivers, and streams. 

All this goes to explain why eleven organizations recently filed an amicus brief in litigation pending before the Michigan Supreme Court. Michigan Farm Bureau, a rich and powerful insurance company and lobbying agency masquerading as a grassroots ag group, is blocking the state’s efforts to control widespread water and soil pollution from livestock confinements. Our brief argues that no one is above the law, or the duty to protect Michigan’s waters for all of us.

Download and read the amicus brief (PDF)

FLOW and its many allies, from CAFO neighbors to trout fishers to city dwellers paying to clean up an uncontrolled wastestream delivered to them by rivers, have had enough. For too long, agricultural polluters have had a free pass and no accountability as we dump vast amounts taxpayer money into voluntary water quality measures that work only for a short time, or not at all. We’re looking for creative ways to fight back. Join us.