Detroit Mercy School of Law: Business and environmental interests don't have to be intrinsically at odds with each other. That's the stance taken by Nick Schroeck, associate dean of experiential education and professor at University of Detroit Mercy School of Law. Growing up in metro Detroit, Schroeck developed an appreciation for natural resources from his parents, and as an adult, he became intrigued by the complicated relationship between the Great Lakes state and its most precious natural asset. Schroeck served as a special prosecutor in the Flint Water crisis and is keenly observing litigation over Enbridge's Line 5 pipeline.
What drew you to environmental law?
My father's family, they had this dairy farm in Pennsylvania and so we spent summers as a kid and young adult working on that farm. And he got really interested in just the natural world … My mother was really into gardening and being outside and knowing different types of plants and stuff, too. And so, as a kid, we were kind of always around that.
I went to undergrad in suburban Chicago, a small college called Elmhurst College. There, I studied political science and urban studies … I took a lot of urban planning classes and was really interested in parks and green space and that kind of thing. So then after a couple jobs in between … I moved back to Michigan to go to law school at Wayne State…
So, it was really through kind of taking the courses and learning a little bit more about how we regulate pollution, how, you know, businesses and investors and environmentalists and all these people kind of play a role in the system to get us to where we are, which is basically permitting the licensing of pollution. And that's something that I found kind of fascinating. I've always been really fascinated by water and water quality. I would say it's probably just growing up as a kid here in Michigan and being around the Great Lakes.
What role did you play in Flint water litigation?
Yeah, actually, I was a special assistant prosecutor for Genesee County. So they had a team of us assembled to look into what happened and that investigation was eventually folded into the state Attorney General's investigation. I was basically an environmental expert to kind of help them navigate the Safe Drinking Water Act and, you know, kind of how all of these laws are supposed to function and what missteps were made. My (environmental law clinic) at Wayne State and myself were involved in that work. I had students that were reviewing thousands of pages of documents, you know, looking through stuff, and so I can't get into much more detail beyond that…
Just kind of learning the way that people sometimes are reduced to numbers, or people and their health are thought about in economic terms rather than their own kind of innate value as people — and I'm not saying that this was part and parcel what happened with the water crisis, but there's definitely some of that — that was very shocking and an upsetting realization. In my mind, the number one goal of our government should be to promote the health, safety and welfare of our people. And, of course, we can quibble about, you know, where we make investments and what our tax rates are and all that kind of stuff, but you know, really, the role of government should be to protect, and I think in the Flint water crisis was when we lost that overarching mission of government.
In your mind, is the crisis over?
Well, when it comes down to it, there's no safe level of lead. And we don't want lead to get into our bodies in any way. And so we have this action level now that's lower than it was before the water crisis, meaning that when you have lead sampling in the water beyond 12 parts per billion now, these alarm bells go off and you need additional testing to warn people. That's better than having the trigger be 15 parts per billion. Definitely a good thing. But there's really no safe level of lead, and so, you know, working towards, as quickly as we possibly can, replacing those lead service lines… and the challenge then, of course, is money.
The other thing is that I think accountability is still lacking. We haven't seen people charged or prosecuted all the way through a judgment, and that's very frustrating for the people of Flint.
What do you make of the Line 5 lawsuits?
It'll be really interesting to see what happens with these two kind of key cases right now. There's one in state court in Ingham County, and that's the case that was filed by Attorney General (Dana) Nessel on the same day that the state announced that they were terminating Enbridge's easement for the Line 5 pipeline. And then we had a lawsuit in federal court in the Western District of Michigan. Why I think this will be a fascinating series of cases to watch is that they're basically arguing over different things. So, the state court litigation is really focused on this easement, whether they should have been granted in the first place by the state and whether Enbridge has failed to live up to the terms of the agreement. And that's more like a contract dispute, or a property dispute, whereas Enbridge is trying to argue in federal court that actually the state really doesn't have anything to do with pipeline regulation. It's a federal issue. …And so, how do you sort all of that out?
Really, what's going on here is Governor (Gretchen) Whitmer ran on opposition to the pipeline. Attorney General Nessel also ran for election wanting to shut down Line 5, and they're trying to do what they can to shut it down. Their argument on the easement is using something called the Public Trust Doctrine, which is this legal doctrine holding that the Great Lakes are in trust for you and I and for future generations and that our Legislature has to protect the public's trust in the Great Lakes. And so, really interesting legal argument. How that squares against regulation of pipelines … will be really interesting to watch in the courts.
While that pipeline continues to be submerged in the Straits of Mackinac, it's a risk. Everyone knows it's a risk every day that it's there and it's pumping oil. At the risk of an anchor strike, or have some sort of failure happening. And so, Enbridge can't run away from that fact, and the state does have an interest in trying to mitigate that risk as much as possible. And where it gets even more tricky is the whole tunnel piece because the tunnel would actually eliminate some of the risk. You wouldn't have the risk of an anchor strike if you've got the pipelines in the tunnel, and an anchor strike is the number one risk. And then you get into the other arguments about should we really be doubling down on fossil fuels.
Do you think it's possible to be pro-economic development and pro-environment?
For a long time in Southeast Michigan, we've had this idea, you know, that it's environmentalists versus business, or it's industry versus a community group. And so it often gets set up as kind of an us vs. them type of battle. And I really think there's an opportunity for us here in Detroit, you know, post-bankruptcy and continuing to grow in unique and different ways, to think about what are the opportunities for us to grow our economy in a green way, where we're creating jobs and we're adding to the tax base and all those good things, but in a really sustainable way.
I think Detroit and Michigan could be a place that could kind of lead the world in showing how you take a post-industrial city and really think through the ways to make it sustainable and growing in different ways, not just good for the bottom line of companies but also good for the environment and health.
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December 13, 2020 at 12:04PM
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Environmentalists and industrialists can coexist, says Nick Schroeck - Crain's Detroit Business
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