Great Lakes feeling climate impact, but little legal recourse for action

Nov. 5—More high-intensity storms, heavier tick infestations, and unpredictable variances in lake levels are just some of the impacts occurring to the Great Lakes region now as a result of Earth's changing climate.

And science shows it's getting worse.

But what can be done from a legal standpoint to provide some relief — especially for low-income populations — so the situation doesn't spiral out of control?

That was the subject of the 21st annual Great Lakes Water Law Conference hosted Friday by the University of Toledo College of Law and its Legal Institute of the Great Lakes.

Kim Channell, a climatologist for the Great Lakes Integrated Sciences and Assessments unit at the University of Michigan, a program funded by the National Oceanic and Atmospheric Administration to tailor climate change science to the eight Great Lakes states, opened the event with an overview which showed Great Lakes temperatures and precipitation on the rise since the 1950s.

More acute increases are projected throughout the 21st century and beyond if meaningful action isn't taken soon to lower carbon dioxide, methane, and other greenhouse gases that are altering Earth's climate, she said.

Like climate-change impacts in other parts of the world, those here in the Great Lakes region aren't evenly distributed, Ms. Channell noted.

Shoreline communities in northern Michigan, Wisconsin, Minnesota, and other parts of the Upper Great Lakes have actually experienced more lake-effect snow at times because of warmer lake levels and less ice coverage.

The region's southern communities, including Toledo, have been getting less snow over the past six decades as winter rain — once a rare occurrence — has become more common, Ms. Channell said.

Winter temperatures throughout the Great Lakes region aren't always on a steady upward trajectory, either, because of how the polar vortex has wobbled more often beyond the Arctic Circle in recent years. Its instability has resulted in occasionally prolonged, hard freezes and thick ice cover some years.

But deep freezes are no longer the norm.

"Average Great Lakes ice cover has declined since the 1970s, but is not uniform," Ms. Channell said, explaining that polar vortex freezes in 2014 and 2019 provided the region thick ice and rough winters those years.

Expect more frost-free days and more deadly summer heat waves in the coming years, Ms. Channell said.

"Heat has been the leading cause of climate-related deaths the last 30 years," she said.

Great Lakes municipalities are now urged to find better methods of managing storm water because of the trend toward more frequent and intense storms that cause flooding.

"Climate change brings a lot more uncertainty to issues than we're used to dealing with in the past," Ms. Channell said.

Legal remedies remain elusive, in large part because of Washington politics.

Kenneth Kilbert, UT law professor and its Legal Institute of the Great Lakes director, walked participants through the recent history of congressional attempts to curb emissions from the two largest sources of greenhouse gases, automobiles and coal-fired power plants.

The federal Clean Air Act passed by Congress in the early 1970s is "not an ideal tool" to address climate change, but it's the best thing the U.S. Environmental Protection Agency has, he said.

"It's like trying to put a square regulatory peg into a round, climate-change hole," Mr. Kilbert said.

President Biden's call for greater efficiency from new automobiles by 2026 is actually less ambitious than what former President Barack Obama tried to get. But it is more stringent than what Mr. Obama's successor, former President Donald Trump, sought.

"This is just a proposed rule. We don't know what the final rule will reflect," Mr. Kilbert said.

In terms of power plants, Mr. Kilbert explained why Mr. Obama's 2015 Clean Power Plan generated such opposition from the fossil fuel industry and states still heavily reliant on coal-fired power, including Ohio, which was part of a lawsuit challenging tighter restrictions.

The Clean Power Plan called for an eventual 32 percent reduction of carbon dioxide emissions from coal-fired power plants.

It generated more than 4 million public comments, the most ever for a proposed environmental regulation of its kind, Mr. Kilbert said.

Even though Mr. Trump labeled the Clean Power Plan as Mr. Obama's "war on coal" when running for president in 2016, it didn't matter. The rule never took effect. Nine months before Mr. Trump was elected, in a controversial 5-4 decision, the U.S. Supreme Court issued a stay.

Mr. Trump replaced the Clean Power Plan with a much softer New Affordable Clean Energy rule, which the U.S. EPA challenged because the rule claimed that harm beyond a utility fence line could not be considered, Mr. Kilbert said.

"It didn't require actual reductions [in carbon dioxide]," Mr. Kilbert said. "It was estimated it would only reduce emission 1 percent by 2035."

Then, in response to a court case brought by the American Lung Association, both rules were vacated this past January. The Biden Administration has vowed to come up with something else, he said.

The irony, Mr. Kilbert said, is that America's carbon-dioxide emissions fell considerably since 2015, anyway, because the price of natural gas plummeted from expanded fracking. At the same time, solar power, wind power, and other forms of renewable energy became more affordable.

He said he doubts the Great Lakes region can rely solely on market-based solutions but said lower-priced natural gas and renewables have helped.

"Market forces will take us part-way down that path," Mr. Kilbert said. "[But] I think we still need some regulation of coal-burning power plants."

Cinnamon Carlarne, an Ohio State University environmental law professor, said it's "important to learn presidential politics" to understand why America struggles to pass meaningful laws for addressing climate change.

In preparation for the COP26 summit in Scotland, Mr. Biden released a 60-page, long-term strategy with lofty goals for addressing climate change, such as having America reduce its greenhouse gases by more than 50 percent by 2030 and having the country powered by carbon-free electricity by 2035.

But she said it's unclear how the country would get there.

"These are ambitious goals and require significant investment," Ms. Carlarne said.

James Clift, Michigan Department of Environment, Great Lakes and Energy, talked about a new council created by the administration of Michigan Gov. Gretchen Whitmer to address climate change at the state level.

Mr. Clift, a longtime Michigan Environmental Council director, said he is dismayed by the number of ticks Michigan deer have gotten in recent years. He believes it's because Michigan's winters aren't as cold as they used to be.

The state needs more days in which temperatures fall to minus-30 degrees, he said.

"We're really rooting for those polar vortex events," Mr. Clift said. "Ticks can't overwinter when it's that cold."

First Published November 5, 2021, 5:45pm