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Peat Bog Joins The List of Engler’s Environmental Mistakes

June 24, 1997 | By Keith Schneider
Great Lakes Bulletin News Service

Since taking power more than six years ago, the Engler Administration has made some of the boldest strikes of any state government against the environment.

This year, Governor Engler signed a law that will accelerate the dividing of tens of thousands of acres of farm and forest land for strip malls, roads and subdivisions. Last year, the governor announced a new retirement policy that cleared the Department of Natural Resources and the Department of Environmental Quality of its most seasoned and respected stewards. The year before, the governor secretly negotiated a politically-motivated settlement in the Nordhouse Dunes oil drilling case that ended up transferring more than $90 million in taxpayer funds to private interests, a sum so immense it had the effect of freezing the will of state regulators to act against environmental outlaws.

Now the Administration has struck again. Earlier this month, it approved a Texas company’s permit to dig up, dry out, and remove tons of peat moss from nearly 1,900 acres of the Minden Bog in Sanilac County. The mining permit, issued by the DEQ on June 6, is the largest ever issued for a wetland development project in Michigan. It allows the Michigan Peat company to destroy a vast, saturated plain of spaghnum moss and rare plants, a splendid natural spectacle that still looks much like it did when the Thumb region was first settled.

The DEQ decision abruptly reverses a 1995 ruling by the Department of Natural Resources, which turned down the company’s plan to expand beyond the 951 acres it is already mining. In response, Michigan Peat filed suit. It claimed that the regulatory action was an unconstitutional seizure of its property and asked the court for $300 million to $500 million in "just compensation."

Executives with Michigan Peat have chosen not to talk about the case in public. Privately, though, they are said to have expressed their enthusiasm for Harding’s decision. And why not? When faced with a wealthy industrial opponent, the DEQ collapsed.

Peat moss has been mined in the Minden Bog since the 1950s to supply America’s gardens. Much of the company’s case rests on the fact that in 1958, Michigan Peat swapped a parcel of their own land on Lake Huron for 1,280 acres of the bog owned by the Department of Conservation, the predecessor to the DNR. As part of the swap, the company was given express approval to produce peat moss. The company argues in its lawsuit that the terms of the agreement have the legal force of a treaty, and must be honored.

State attorneys disagree. They were prepared to argue that when it comes to protecting the public trust, the American judicial system has always evolved to take into account changed circumstances. Just such a change was the new scientific understanding of the value of wetlands in providing habitat, purifying water, and soaking up floods. The 1979 state Wetland Protection Law was designed to give government the technical information and legal tools to protect them.

State lawyers, though, never got to make their case. The Engler Administration decided not to invest in a defense of the bog. In effect, the DEQ acknowledged that it was abandoning the job of enforcing the law. An anarchic form of government, in which state agencies are unwilling to carry out their responsibilities, has formally arrived.

The state’s approach to resource stewardship has become so twisted, in fact, that on the day the mining permit was issued, DEQ director Russell Harding actually issued a press statement that said his decision would better "protect" Minden Bog.

Harding’s Orwellian reasoning was based on two points.

First, Harding said he was "extremely concerned with the trend in property rights decisions" in the Nordhouse Dunes case, and in a separate $5.2 million "takings" case in Oakland County. In other words, Harding didn’t believe that state judges would rule in his favor.

Second, Harding was looking for the federal government to bail him out. Since 1980, the state has shared responsibility for protecting wetlands with the Environmental Protection Agency and several other federal agencies. In instances where a dispute arises, the United States reserves the right to take over jurisdiction.

Minden Bog is just such a case. The E.P.A. and the U.S. Fish and Wildlife Service have formally opposed the development. When Harding granted the mining permit, the result was to automatically transfer control of the case to the U.S. agencies, which have greater resources to battle the company.

Not withstanding the painful logic, the irony of Harding’s decision is striking. Among the Administration’s senior strategists, Harding has gained a well-earned reputation for being both the most loyal supporter of the reactionary "property rights" agenda, and the fiercest critic of the E.P.A. In this case, though, Harding has performed the policy equivalent of a backflip. He laments the court rulings that advance the right wing ideology he favors, and he is looking for help from the very federal agency he has spared no energy in bashing.If only he would display the same creativity in enforcing the law.

Not long ago, Michigan was recognized as a national leader in devising effective programs to safeguard natural treasures. The decision in the Minden Bog, and in a host of other troubling cases, reveals a different vision: a contemptible plan to systematically weaken state government’s resolve to be an effective steward. Half a decade after taking office, The Engler Administration appears to have reached its goal. Michigan’s once-stellar resource protection program has been rendered a helpless parody.

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