Great Lakes Legislation Ill-Conceived and Ill-Advised

Zebra mussels on a stick.
Source: NOAA, Great Lakes Environmental Research Lab. Photo by Simon van Mechelen, University of Amsterdam.

Michigan state government may soon require oceangoing ships to obtain a state permit before using Michigan ports. Given concerns over the accidental introduction of exotic species, such as zebra mussels, this might sound like a good idea — but in fact, it is a bad idea that could forestall a more effective approach.

The environmental issue is legitimate. Anyone who has been in Michigan in the last few years understands how invasive species like the zebra mussel can dramatically alter the lakes’ ecology.

For instance, the Great Lakes Environmental Research Laboratory has been detecting decreases in Diporeia, the tiny shrimp that make up 80 percent of the food supply for fish in Lake Michigan. Although the decline started during the 1980s, the trend significantly increased in the early 1990s, following the appearance of the zebra mussel. Moreover, because of the mussels, those Michigan utilities and municipal water systems that obtain water from the Great Lakes spend considerable sums of money each year unclogging their inlets, which can fill with the prolific creatures.

Exotic species often gain a foothold in the Great Lakes by hitching a ride with oceangoing freighters, which are known as "salties." Somewhere between 400 and 600 round trips are made by salties from international waters to the Great Lakes each year.

Typically, hitchhiking species will hide in these oceangoing vessels’ "ballast water" — the water that the ships routinely carry as an extra weight for stability in rough seas. To minimize the problem of stowaway species, freighters often pump out their ballast water before entering the Great Lakes, and they also try to minimize the amount of residual muck from the ballast that can remain in the bottom of the ship.

Unfortunately, this ballast-water exchange has not eliminated the introduction of exotic species in the Great Lakes. The practice has fallen short for several reasons:

1. Ballast-water exchange is not always possible in the open ocean due to safety concerns. Attempting the procedure during rough seas can compromise the structural integrity of ships.
   
   

2. Even ships with no ballast water on board can spread exotic species. As mentioned above, ballast water often leaves behind solid material in the bottom of the ships. This muck is very difficult to remove and provides a good environment for the survival of some exotic species. As cargo is picked up at various Great Lakes ports, ships may need to discharge ballast water that may have become contaminated from the muck.

3. Ships contain a single set of pipes for water uptake and discharge. Even with no ballast water on board, the pipes may still be contaminated with species foreign to the Great Lakes.

Concerns about better protecting the lakes have prompted the introduction of Michigan Senate Bill 332 and Michigan House Bill 4603, which appear to be gaining political momentum. The two bills contain identical language and require oceangoing vessels that wish to use Michigan ports to obtain a state permit beginning in 2007.

Unfortunately, there are at least two major drawbacks to the bills. The first problem is that they do not provide an outline for how permit standards should be set. Instead, the bills simply stipulate that the Michigan Department of Environmental Quality "shall promulgate rules regulating the discharge of substances that contain biological pollutants from oceangoing vessels."

Thus, like many government attempts to fix environmental problems, the approach in these proposals delegates too much unchecked authority to regulators, freeing them from a thorough consideration of scientific and regulatory alternatives. Simply empowering state regulators to unilaterally devise rules that would have enormous environmental and economic repercussions is a simplistic response to a complex problem, and it leaves the fate of the lakes and the people of Michigan in the hands of officials who cannot be held accountable at the polling booth.

The proliferation of nonnative species may constitute the most serious threat to the Great Lakes. This fact alone suggests that the Legislature would do well to consult scientists, the shipping industry and other states in the Great Lakes basin before rushing potentially ill-conceived regulations into the books.

Fundamentally, any new legislation should provide shippers the flexibility to utilize a variety of technologies to treat ballast. Too often, inflexible rules that mandate specific technologies can lock out more effective methods by inhibiting research into better alternative technologies. Similarly, technology-specific rules may reflect the preferences of a few special-interest groups or self-proclaimed environmental "watchdogs," rather than the results of sound science. In the debate over exotic species, for instance, some environmental activists view chemical treatments of water and residues as flatly unacceptable, despite the treatments’ potential effectiveness.

Any permit system should be performance-based, allowing the shipping industry to demonstrate compliance by utilizing a variety of technologies that produce compliance levels determined by the DEQ. These compliance levels, in turn, should be developed in the light of day and be subject to scientific review. The DEQ should not be given carte blanche to issue administrative rules that will, if history is any guide, make the regulatory system ineffective, expensive and unnecessarily complex.

And there is a second problem with the bills: They effectively put Michigan in the untenable position of going it alone on this issue. While they do contain hortatory language about consulting other Great Lakes states, Canadian provinces and national and international governing bodies for the lakes, they cannot compel a cooperative framework that includes other governments and agencies — most particularly the U.S. Environmental Protection Agency.

Yet any permit system needs to be coordinated with the federal government, in part to prevent the issuance of conflicting rules, and in part to protect Michigan’s permits against legal challenges regarding violations of the interstate commerce clause of the U.S. Constitution. The EPA itself maintains that it has authority under the Clean Water Act to regulate ballast-water discharge. Although the agency has been battling in court with the Ocean Conservancy and five other groups regarding its regulation of ballast, the dispute concerns the timing and the methods of EPA regulation, not the fact of EPA jurisdiction.

Nor is the only risk that federal authorities might overturn DEQ regulations. If the DEQ’s regulations are unnecessarily costly or ill-conceived, and if they are not adopted by other states and provinces, ships might simply head for other harbors. Helen Brohl, executive director of the U.S. Great Lakes Shipping Association, has said that if the proposed legislation becomes law, ships would simply avoid Michigan ports. Even if this proved only partially true, it could harm Michigan’s commerce for no net environmental gain.

The problem of exotic species in the Great Lakes does require a solution. Unfortunately, these bills do not provide one, and if the Legislature and Gov. Jennifer Granholm make them into law, they could easily stand in the way of a better approach in the future.

Russ Harding is former director of the Michigan Department of Environmental Quality and is senior environmental policy analyst for the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.