‘A Step toward Victory for the Public and the Great Lakes’

Editor’s Note: The following is a statement from Jim Olson, Senior Legal Advisor at FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City. The statement is in response to the decision today by the Michigan Public Service Commission (MPSC) at its regular meeting to reopen the record to gather more information on the safety and engineering of a 21-foot-diameter tunnel intended to house a new segment of the Line 5 pipeline, as proposed by Canadian oil-transport giant Enbridge. Enbridge proposes to bore and blast a tunnel through the public bottomlands in the Straits of Mackinac, where Lake Michigan meets Lake Huron at the very heart of the Great Lakes. The MPSC also requested additional information on the safety of the existing Line 5 oil pipelines in the open waters of the Straits, which Enbridge continues to operate in defiance of a shutdown order issued in November 2020 by Gov. Gretchen Whitmer. FLOW also filed a formal comment today with the MPSC.

“Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes to construct through the public bottomlands of the Straits of Mackinac before making any final decision is a step toward victory for the public and the Great Lakes.

Jim Olson, FLOW’s Founder and Senior Legal Advisor

“The MPSC also wisely requested more information on the safety of the dangerous, nearly 70-year-old Line 5 oil pipelines in the open waters of the Great Lakes. The MPSC has once more demonstrated its strong sense of responsibility to address Line 5’s inevitable, adverse effects on the Great Lakes, communities, and the rights of the public and environment in the Great Lakes and Straits of  Mackinac.

Today’s approval by the Michigan Public Service Commission of an order to reopen the record and gather more information on the safety and engineering of the oil pipeline tunnel that Enbridge proposes… is a step toward victory for the public and the Great Lakes.

“More than two years after Enbridge applied for the MPSC’s approval to construct a massive, 21-foot-diameter oil tunnel under the Great Lakes, it’s clear that Enbridge has failed to demonstrate the safety and feasibility of the $1 billion-plus project and even more questions are being raised about the Line 5 oil pipelines that continue to endanger the Great Lakes, our economy, and way of life.

Screenshot of MPSC commissioners meeting July 7, 2022, in Lansing, Mich. From left: Katherine Peretick, Chairman Dan Scripps, & Tremaine Phillips.

“FLOW and other interested parties have identified critical deficiencies in the tunnel project’s construction permit application, its legal authorization, and the review by state environmental agencies of expected impacts to wetlands, bottomlands, and surface water, including from the daily discharge of millions of gallons of wastewater during construction. FLOW also has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.

FLOW has deep concerns about the lack of public necessity for the project, which would worsen climate change and related impacts to the Great Lakes.

Screenshot of Marshall Clabeaux, of Lansing, expresses opposition to the proposed Line 5 oil tunnel during public comment at the July 7, 2022, MPSC meeting in Lansing.

“The MPSC’s decision to seek more safety information upholds its solemn, legal responsibility under Michigan’s constitution and environmental and public trust laws to protect people, communities, the Great Lakes, and the environment from the effects of climate change from this massive project that would facilitate the continued production and consumption of 8.3 billion gallons of oil a year for the next 99 years. 

“No one disputes the obligations of the State and MPSC to protect the public rights of citizens in the Great Lakes. Based on Michigan Supreme Court decisions, the MPSC  is one of the ‘sworn guardians’ of the Great Lakes and the public trust rights of all citizens in Michigan. The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real. The effects from climate change to the Great Lakes, infrastructure, communities, health, and environment are devastating and undeniable.

The threat of devastating physical impacts to the Straits, the fish habitat, risks to the environment, the rights of citizens for fishing, boating, swimming, drinking water and health, and the tribal culture and fishing rights are real.

“The MPSC on April 21, 2021 ordered a full and complete hearing record on climate and environmental effects and the rights of  citizens under the Michigan Environmental Protection Act (MEPA). Today’s Order is consistent with that decision and the duties of the MPSC under the MEPA and public trust law.  Under MEPA, given these likely effects, the Enbridge Line 5 tunnel project was properly remanded for a more thorough investigation of these matters. This includes consideration of reduction of greenhouse gases through alternatives to Line 5 and the Tunnel Project. 

With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.

“Moreover, the tunnel and tunnel pipeline have never been authorized by the Department of Environment, Great Lakes, and Energy as required by  the Great Lakes Submerged Lands Act and public trust law. Under these laws, the company must obtain authorization to use, not just construct, the public trust waters and submerged lands of Michigan. Enbridge has never obtained this authority. 

“With society’s urgent need to tackle climate change head on and ensure freshwater security, Enbridge cannot show that its proposed fossil fuel infrastructure is a credible solution for Michigan’s 21st century just and equitable future.”

Background: See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here: https://forloveofwater.org/?s=MPSC.