Search Results for: Line 5

Reality Check: Line 5 Threatens More Jobs Than It Sustains

By Maude Barlow and Jim Olson

Jim Olson

Maude Barlow

Editor’s note: This opinion piece appeared originally in Canada’s National Observer.

The United States and Canada are not only close friends and neighbours, but are also committed to resolving their differences with civility and common purpose. The 112-year-old International Joint Commission (IJC), which prevents and resolves disputes over boundary waters, is an example of this special relationship. So is the groundbreaking agreement among Ontario, Quebec and the eight Great Lakes states to ban water diversions from these shared and treasured waters.

The two nations, however, are clashing over energy policy and the effects of Line 5, the Canadian petroleum pipelines in the open waters of the Straits of Mackinac, a major shipping lane and important whitefish spawning ground where Lake Michigan meets Lake Huron. If both Canada and the U.S. take a hard look at these issues together, they will swiftly realize that co-operation, not confrontation, is in the best interests of both — and, significantly, the interests of the planet.

The current discord between the two nations is over the decision in November by Michigan Gov. Gretchen Whitmer to exercise her state’s sovereign constitutional authority to revoke the 68-year-old easement that Enbridge has relied upon to transport petroleum by pipeline from Alberta to Sarnia, Ont., across the public bottomlands of the straits separating Michigan’s upper and lower peninsulas.

The governor took this action in light of the clear and present danger from Enbridge’s appalling track record of easement violations in operating Line 5, including lake-bed erosion undermining support of the dual pipelines in the fierce currents where Lake Michigan meets with Lake Huron. Enbridge also lacks adequate liability insurance and has steadfastly refused to provide any of the financial assurances that Gov. Whitmer has demanded.

Enbridge knew at least 20 years ago that the original design of the Straits of Mackinac pipelines was failing. Year after year, the company quietly sought approval from the state of Michigan to shore up the pipeline, passed off as “repairs,” by installing supports — now 228 of them — in effect lifting about three miles of the dual pipelines into the water column. Government officials, however, never required Enbridge to get approval for such a radical change that poses a whole set of new and serious risks.

Then, as if fate were sounding a warning alarm, a 12,000-pound anchor from a passing vessel struck and dented the twin pipelines on April 1, 2018. Last summer, Enbridge disclosed two more strikes by anchors or cables. These foreseeable accidents could have opened a gash in the pipeline, exposing 700 hundred miles of the Great Lakes shoreline — potentially including those of Georgian Bay — to a catastrophic spill costing $6 billion in economic damages to tourism, drinking water and other interests. Even worse, such a spill could trigger a domino effect of damage disrupting Great Lakes commercial shipping and steel production, slashing jobs and shrinking the U.S.’s gross domestic product by $45 billion after just 15 days. Michigan will lose tens of thousands of jobs if Line 5 ruptures.

Many families, communities, tribes and businesses understandably are skeptical of Enbridge’s safety assurances. Enbridge calls Line 5 “as good as new” and says it can last “forever,” even though Line 5 has failed at least 33 times since 1968, spilling more than 1.1 million gallons of oil in Michigan and Wisconsin. In 2010, the company was the culprit in one of the largest petroleum spills in U.S. history. A leak in an Enbridge pipeline in southwest Michigan dumped 1.2 million gallons of heavy tarsands oil into the Kalamazoo River watershed, harming human health and damaging fish and wildlife habitat. The spill cost Enbridge over $1 billion to clean up to the extent possible. The U.S. agency that investigated the spill likened the Enbridge response to the spill to the “Keystone Kops” and cited “pervasive organizational failures at Enbridge.”

Many Canadians are concerned about the possible distortion of their energy supply. They shouldn’t be. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to experts from the Great Lakes protection group FLOW. They argue that when Line 5 shuts down, regional domestic energy needs and supplies for refineries will still be able to be met. The estimated increased cost to consumers would be a fraction of a cent per gallon of gasoline, according to a study commissioned by the National Wildlife Federation.

The threat to the Great Lakes, both U.S. and Canadian waters, is clear. Equally clear is the risk to the planet of another 99 years of transporting carbon-rich petroleum from the Prairies to Sarnia for refining and ultimately releasing massive carbon dioxide emissions. Government promises of a new commitment to action on climate change are hollow if Line 5 continues operation indefinitely.

The law in the U.S. and Canada recognizes the waters of the Great Lakes are held in trust to be managed by the governments as guardians for navigation, fishing and other paramount needs of citizens. Unfortunately, the Canadian and Ontario governments have joined forces with Enbridge to forsake this guardianship by pressuring Gov. Whitmer. As the company spends resources on a slick public relations campaign exaggerating the benefits of Line 5 to the U.S. while neglecting to mention its history of environmental negligence, the governments dispute Michigan’s concerns about a Great Lakes spill.

In 2016, the IJC urged governments in the Great Lakes region to adopt the public trust doctrine as a legal backstop to assure the majesty of the lakes and bottomlands is not impaired. The IJC recommendation makes sense for present and future generations. If Canada and the U.S. do so, they will inevitably support decommissioning of Line 5.

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About the Authors: Maude Barlow is an activist who served as an adviser on water to the United Nations and is Chancellor of Brescia University College. Her latest book is, “Whose Water Is It Anyway? Taking Water Protection Into Public Hands.” Jim Olson is founder and president of FLOW (For Love of Water) in Traverse City, Mich.

Canada’s Pressure Campaign to Keep Running the Dangerous ‘Line 5Pipelines in the Great Lakes Calls for a “Reality Check”

Jim Olson is FLOW’s Founder & Senior Legal Advisor

Straits of Mackinac photo by Barbara Brown

By Jim Olson

In mid-November, Michigan Governor Gretchen Whitmer and Department of Natural Resources Director Dan Eichinger issued a Notice of Revocation of the easement for the crossing of Enbridge’s crude oil dual pipelines on the lakebed of the Straits of Mackinac. The twin pipelines are part of Line 5, which carries crude oil and natural gas liquids (including propane) from Canada through the U.S. and back into Canada for Ontario refineries or foreign exports.

Enbridge and the Canadian oil industry have now launched a media campaign to stir up fear in Ontarioand political pressure in Ottawa, Michigan, and Washington, D.C.about  the shutdown of the perilous Line 5 at the confluence of Lake Huron and Lake Michigan. The well-oiled media machine of Calgary, Enbridge’s headquarters and ground zero for the Canadian extraction of oil, has unleashed a barrage of stories that claim Michigan and the U.S. need Canadian oil, that thousands of jobs in Sarnia are in jeopardy, and that Sarnia and Ontario oil refineries already plan to implement an alternative by transporting crude oil by rail or ship it up the St Lawrence and on to Sarnia—a scare tactic on Ontario citizens.

Without demeaning the concerns of Ontario residents, this attempt by Enbridge to oppose the shutdown of the Line 5 dual pipelines in Lake Michigan and Lake Huron requires a reality check: Both governments, the provinces and states, and the citizens of both countries—40 million of us—depend on the Great Lakes for navigation, fishing, drinking water, health, jobs, and quality of life.

Over the next week, FLOW will offer subsequent reality checks about Line 5.

Reality Check No. 1—The State of Michigan Has the Legal Duty and Authority to Revoke the Easement and Shut Down Line 5 in the Straits of Mackinac, which the Federal Government Cannot Preempt.

Michigan lawfully revoked the 1953 easement and operation of Line 5 on the bottomlands of the Straits of Mackinac to prevent the undeniable risk of unacceptable, devastating harm to Lake Huron and Lake Michigan. In response, Enbridge filed a lawsuit in federal court to block the State of Michigan order that requires a shutdown of the operation of Line 5 in the Straits of Mackinac by May 12, 2021. Enbridge then sent a letter to Governor Whitmer that refused to acknowledge and comply with the revocation, claiming Michigan did not have the legal authority to revoke the easement and the operation of Line 5 in the Straits of Mackinac. This is flatly wrong.

Like every state, when Michigan joined the Union in 1837, it took sovereign title to all of its navigable waters and lands beneath them. In the words of the U.S. Supreme Court, this title was “conferred upon Michigan by the federal constitution itself” and vested in the states “absolutely.” [PPL Montana v Montana, 565 U.S. 576 (2012)] The State holds this title under a solemn, perpetual public trust for the benefit of its citizens, who are the legal beneficiaries of this trust. The state government is the “sworn guardian” of these lands and waters, and has an affirmative duty to protect rights of citizens to navigation, fishing, drinking water, boating, and other water-dependent public needs from interference or harm. This public trust title and interests are perpetual and irrepealable and any easement or other agreement for use of Great Lakes bottomlands is revocable when necessary to prevent serious harm to the public trust and these protected uses.

Because Michigan revoked the easement and ordered the shutdown of Line 5 under the Straits and Great Lakes to prevent a catastrophic spill that all agree would be devastating and cause irreparably damage to these trust lands and waters, it is unlikely under any imaginable legal theory—Enbridge has tossed a slew of them on the courthouse wall—that a federal court will allow a private foreign corporation or Canada to override Michigan’s exercise of its core sovereign power to protect the rights of its citizens and these public trust lands and waters. 

Under revered decisions of the U.S. Supreme Court, these core principles of state sovereignty are not and cannot be preempted by federal law or the federal constitution; there is only one exception to this rule, and that is where Congress acts to improve navigation or promote commerce or foreign affairs related to, or dependent on, navigation in or over these waters. Crude oil pipelines can be routed anywhere, and most certainly are not dependent on navigable waters like the Straits of Mackinac and the Great Lakes. Crude oil pipelines have nothing to do with navigation and shipping or the promotion of these navigational interests. 

Reality Check No. 2—The MPSC Must Not Fail Again to Consider and Determine the Necessity, Impacts, and Alternatives to Line 5 in the Great Lakes.

Michigan approved the 1953 easement to Lakehead Pipe Line Company, now Enbridge, as an accommodation. It allowed the company to save money by taking the shortest route for a 30-inch pipeline to carry 300,000 barrels per day (bpd) of crude oil—at 42 U.S. gallons per barrel, that’s  12,600,000 U.S. gallonsfrom a pipeline hub in Superior, Wisconsin, across the Upper Peninsula of Michigan, along the bottom of the Straits of Mackinac, crossing part of the Lower Peninsula and then under the St. Clair River to Sarnia. As a result, the company did not have to build a pipeline down, around Chicago, and across southern Michigan to Sarnia. Enbridge expressly agreed that its easement and operation of Line 5 in the Straits were subject to the prudence of an ordinary person to prevent harm to public and private property—namely, the public trust in the Straits and property of riparian landowners and communities along Lake Huron and Lake Michigan. According to an expert analysis and modeling by the University of Michigan’s Water Center, up to 700 miles of shoreline and the upper one-third of Lake Huron and Lake Michigan would suffer devastating, irreparable harm in the event of a failure.

In 1969, Michigan’s Public Service Commission (MPSC) gave Lakehead (now Enbridge) permission to build a second 30-inch pipeline to carry 400,000 bpd of crude oil around Chicago and across southern Michigan to Sarnia. So, ironically, just 16 years after the push for Line 5’s shorter route through the Straits, Enbridge also operates Line 6b using the longer route and ended up with two pipelines.

Fast forward to 2010, and negligence by Enbridge led to Line 6b’s rupture and spill of more than one million gallons of heavy tar sands crude into the Kalamazoo River. Although Enbridge paid for years of cleanup, ultimately it appears that Enbridge was rewarded for its failure with permission to rebuild and supersize the failed pipeline. Enbridge maneuvered the MPSC to not only approve a new replacement 6b pipeline (now called 78), but to increase the diameter to 36 inches and double the design capacity to 800,000 bpd (33,600,000 U.S. gallons per day). That’s not all: During this same time period the MPSC approved Enbridge’s addition of anti-friction fluid devices to Line 5 to increase the flow of crude oil from 300,000 to 540,000 bpd, and 80 percent increase to about 23,000,000 U.S. gallons of oil per day. 

In sum, the MPSC granted permission to Enbridge to nearly double the capacity for the flow of crude oil through Michigan and mostly back into Canada—from 700,000 bpd to 1,340,000 bpd or 56 million gallons a day. Despite the nearly 100 percent increase in crude oil transport, the MPSC never looked at what the right hand and left hand were doing. As a result, the MPSC failed to consider and determine the necessity, impacts, and alternatives to this doubling of capacity, as required by its public utility laws and the Michigan Environmental Protection Act (MEPA). Under MEPA, the MPSC must consider and determine the likely effects and alternatives of the proposed need or conduct. Had the MPSC done so, it would have realized that the nearly doubled design capacity in Line 6b would have handled most of the oil flow volume in Line 5; in fact, the MPSC could have looked at both its right and left hands, and addressed the dangers of Line 5 in the Straits, made evident by the Kalamazoo River disaster, by requiring Enbridge to size the new replacement line for 6b for all of Enbridge’s need. 

Had Enbridge not manipulated the MPSC into segmenting the company’s planned near doubling of crude oil volume, Line 5 would be gone and Enbridge would be operating one new, replacement line 6b (78). The irony is that one of Enbridge’s executives in the 6b replacement case testified under oath that the enlarged 36-inch pipe or 400,000 bpd increase would meet Enbridge’s, and presumably Canadian refineries’, future crude oil needs. 

Because the duty of the MPSC to consider need, impacts, and alternatives is a continuing duty under the MEPA, it can now correct this serious legal error and take into account the overall Enbridge projects that doubled capacity through its Michigan pipeline infrastructure as part of Enbridge’s pending application to approve a replacement tunnel for a new Line 5 pipeline under the Straits of Mackinac. According to its application and a lease-back agreement, this will allow Enbridge to operate Line 5 for another 99 years. 

Reality Check No. 3—Alternatives Exist to Line 5 for Oil and Propane Supplies that Don’t Threaten the Economy and the Great Lakes.

Enbridge and Canada claim that Line 5 benefits the U.S. and Michigan and that Ontario jobs associated with the crude oil transported to Sarnia overshadow the inestimable value of the public trust, sovereign title, and life and livelihoods of states and Canadian provinces sharing Lake Huron and Lake Michigan. The numbers don’t add up. A sizeable spill into the Straits and the upper one-third of Lake Huron and Lake Michigan would threaten the 350,000 jobs in Michigan’s coastal communities that are directly tied to the Great Lakes and depend on the Great Lakes; a spill would jeopardize the 1.3 million jobs and $82 billion in wages tied to tourism, agriculture, fishing, shipping and related industries in the Great Lakes.

As Canadian expert Warren Maybee recently pointed out, “The oil is flowing into Canada. The U.S. doesn’t really gain any benefit… Most of it is just traveling through their country in order to feed into our system.” 

The fact is that Line 5 is basically for the transport of Canadian oil through Michigan and back into Sarnia for Ontario, eastern Canada, and export to England. The few benefits of Michigan hardly outweigh the State’s duty to protect the public and Straits of Mackinac from billions of dollars and irreversible harm to their livelihood and quality of life. With the upper one-third of Lake Huron and portions of Georgian Bay in harm’s way, there would also be a substantial impact on Ontario’s environment, property owners, tourism, agriculture, and shipping jobs and economy.

As has been well documented, the 41-year-old Line 6b that ruptured in 2010 caused $1.2 billion in damages to the Kalamazoo River, one of the largest inland-waterway oil spills in U.S. history. The 68-year-old Line 5 dual pipelines in the Straits pose a clear danger of far greater damage. Strong currents eroded and scoured away soils under the dual pipelines, elevating long spans of pipe; the problem is so serious that 228 supports have been added since 2001, suspending up to 3 miles of pipes above the bottomland. An anchor strike dented or gouged the dual lines in 2018. Last summer, for at least the third time, an anchor or a heavy cable struck the pipelines and damaged their supporting structure. The next anchor strike could unmoor or break the long sections of pipe now suspended several feet in the water above the lakebed.

Studies conducted by a Michigan State University economic ecologist commission by FLOW have put estimated damages of a spill to natural resources, public and private property, and the tourist economy at over $6 billion, and shrink the nation’s Gross Domestic Product by $45 billion if a break or leak shuts down shipping and hampers steel making for just two weeks. Governor Whitmer and Director Eichinger, as trustees of these public trust waters and uses, had no choice but to exercise their inherent power and fulfill their mandatory duty to revoke the easement and dual lines in the Straits before catastrophe strikes. 

Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to FLOW’s experts. In addition, just 1-2 propane rail cars or 4-5 tanker trucks a day could replace the aging Line 5 pipeline’s U.P. propane capacity without risking a Great Lakes oil spill, FLOW’s latest research shows. The rail cars or tanker trucks could deliver propane from Superior, Wisconsin, to the existing propane storage-and-distribution center in Rapid River, Michigan, north of Escanaba on U.S. 2. 

A Line 5 shutdown could increase the cost of gasoline in metro Detroit by about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration. Line 5’s temporary shutdown in 2020 due to damage had no impact on gas prices, according to independent research. Shutting down Line 5 would add just 5 cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.

Given that alternatives to Line 5 exist, including the increased capacity in Line 78, there is no reason why with a few adjustments in the overall pipeline system that jobs and economic concerns in Ontario or Michigan are really threatened. And, as noted above, the harm to jobs and the economy of a Line 5 spill in the Straits would far outweigh any benefit from continuing to operate the outdated infrastructure.

In short, when Line 5 shuts down, Detroit jets will still fly and union refinery jobs will still exist. Michigan and the U.S., and Ontario on Lake Huron, gain no real benefit and hold 100 percent of the risk of serious harm. It simply isn’t an “either or” analysis. If the harm to the public trust, livelihood, quality of life of the millions of people in Michigan and the Great Lakes Basin outweigh the fewer than 100 permanent Enbridge jobs from Line 5 in Michigan, or jobs in Canada, then the sovereign interests in these waters in the law are “paramount,” which any standard dictionary defines as “above all else.”

FLOW Will Appeal Administrative Decision on Oil Tunnel and Pipeline that Ignores Critical Evidence on Climate, Public Need, and Looming Shutdown of Line 5

Photo by Barbara Brown.

Jim Olson, environmental attorney and senior legal advisor to FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, reacts to a narrow ruling released today by an administrative law judge on Enbridge’s oil tunnel proposed for the Straits of Mackinac:

Today’s ruling by Administrative Law Judge (ALJ) Dennis W. Mack ignores the declining public need for oil as the U.S. and world finally reckon with the climate emergency, and it is blind to the fact that Gov. Whitmer has ordered the permanent shutdown of the Line 5 pipeline that the tunnel would contain this May.

“The State of Michigan will never reach a just and lawful decision on the proposed oil tunnel by agreeing with Enbridge to ignore critical evidence and treat a proposed oil tunnel meant to last 99 years as simply a maintenance-and-replacement project. The tunnel is a Trojan Horse designed to push billions of gallons of oil through the world’s largest system of freshwater lakes in an era of water crises hastened by climate change.

“As a permissive intervenor in the case, FLOW again plans to file an appeal with the Michigan Public Service Commission, as we did in November, along with other environmental and tribal interests

The Michigan Environmental Protection Act (MEPA) enacted in 1970 was created to compel agencies like the MPSC to evaluate the cumulative environmental impacts and to examine alternatives to proposed projects. In the case at hand, MEPA requires the MPSC to examine the environmental, health, and climatic risks of the proposed tunnel and Line 5 pipeline. The greenhouse gas emissions from Line 5’s oil and natural gas liquids, at more than 57 million metric tons a year, is greater than the annual yield from the combined operation on the nation’s three largest coal plants.

“The law does not keep the MPSC frozen in time such that they can ignore these paramount issues.

“The State of Michigan has a perpetual duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them, which led to the Governor’s and DNR’s November 13 order and lawsuit to revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac. The ALJ rejected the argument that the Governor’s notice and revocation of the 1953 easement is a basis to evaluate the environmental effects of Line 5 or the consumption of the oil transported on the system under MEPA.”

Background: See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:

FLOW Deeply Disappointed in the State of Michigan’s Environmental Permit Approval for Proposed ‘Line 5’ Oil Tunnel in the Straits of Mackinac

Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:

“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.

“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel. 

“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”

Background:

Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac. 

Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the  U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location. 

The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.

Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River. 

For more information:

Enbridge’s Federal Lawsuit Attacks State Authority to Protect the Great Lakes from Line 5

Jim Olson is FLOW’s Founder, President, and Legal Advisor

By Jim Olson

The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.

Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.” 

State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations

After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.

The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.  

The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge  Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case,  Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”

Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust

When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.

Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use.  No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.

Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.

State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes

Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.

There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes. 

The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.

The Line 5 Shutdown Order: A Major Milestone in Michigan’s Environmental History

Dave Dempsey, Senior Advisor

By Dave Dempsey

The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.

Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.

The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”

The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.

The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.

It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.

The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.

Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.