FLOW Pages from Line 5-MPSC Order-U-20763_06-30-20 – Finalized Rejected Declaratory Request
Note: This contains the MPSC’s summary of FLOW’s formal comments (excerpted pages 17-23 from the June 30 MPSC order below), in which I used yellow to highlight the topical sentence of each paragraph referencing FLOW and the points we make.
Line 5-MPSC Order-U-20763_06-30-20 – Finalized Rejected Declaratory Request
Photo above: MPSC Chairman Sally A. Talberg, presiding over the Commission hearing today on Enbridge’s proposed oil pipeline tunnel in the Straits of Mackinac.
The following statement can be attributed to Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City:
“The Michigan Public Service Commission’s decision today is a big win for all Michigan residents that upholds their public trust rights in the Great Lakes. The MPSC flatly rejected the untenable claim by Enbridge that it had somehow already received approval in 1953, when Line 5 was built in the Straits of Mackinac, for an oil tunnel it is proposing 67 years later in 2020. The 3-0 vote by the MPSC means Enbridge will not be allowed to dodge a full review of their proposed oil pipeline tunnel, including an August 24 public hearing, which is desperately needed in light of the potential impact on the Great Lakes and its regional economy.
“We applaud the MPSC for rejecting Enbridge’s declaratory ruling request, and instead, requiring that Enbridge’s application be reviewed as a contested case with a public hearing under Michigan’s Act 16. Enbridge now has the burden to show a public need for this proposed oil pipeline under the Great Lakes, ensure no harm or pollution to our public trust waters and lands, and fully consider feasible and prudent alternatives to this 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.”
See FLOW’s additional coverage of the MPSC review of the Enbridge oil pipeline tunnel here:
- May 28, 2020 – Decision Time Coming on Line 5 Oil Tunnel — Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes.
- May 15, 2020 – FLOW Urges MPSC to Deny Enbridge’s Request for a Free Pass on Siting a ‘Line 5’ Oil Tunnel in the Straits of Mackinac. Proposed project purports to be maintenance, attempts to sidestep the Great Lakes Submerged Lands Act and public trust law.
MPSC Chairman Sally A. Talberg
Photo of the Mackinac Bridge and Straits of Mackinac by Kathryn DePauw.
The Michigan Public Service Commission should reject Enbridge’s attempt to dodge the legal review process required to replace and relocate the segment of the Line 5 oil pipeline crossing the Straits of Mackinac into a $500 million proposed tunnel pipeline project, according to formal comments filed Wednesday with the MPSC by FLOW (For Love of Water).
In a convoluted request, Enbridge on April 17 applied to the MPSC to approve a tunnel pipeline project under the Straits of Mackinac to replace the existing four-mile Line 5 pipeline on the lakebed. At the same time, Enbridge filed a request for a declaratory ruling from the MPSC that no approval is actually necessary, claiming the massive tunnel project is just “maintenance” of the 67-year-old dual oil pipelines already approved by the MPSC in a 1953 Order.
“Enbridge wants to circumvent the law by arguing that the 1953 Easement and Order authorized the construction of a tunnel and subterranean pipeline,” said Liz Kirkwood, executive director of FLOW, a Great Lakes law and policy center based in Traverse City. “The truth is this proposed pipeline tunnel infrastructure intended to transport oil for another 99 years beneath the Great Lakes, the world’s greatest supply of fresh surface water, despite the plummeting demand for oil and the climate crisis, bears absolutely no resemblance in design or location to the original pipeline project approved in 1953.”
The MPSC on April 22 issued an order putting Enbridge’s application on hold and opened a public comment period that ended May 13 on the request for the declaratory ruling. The MPSC also set May 27 as the deadline for any replies to comments received regarding the declaratory ruling request.
FLOW’s comments cite several reasons why the MPSC should deny Enbridge’s request and go forward with a full and comprehensive review and determinations of the necessity, alternatives, and overarching public interest of Enbridge’s proposed tunnel and tunnel pipeline infrastructure project under the Great Lakes. The reasons for denial include:
- Not maintenance – Enbridge’s proposal is not maintenance of a previously approved project but, under state law, a “new” oil pipeline to be located in a new tunnel that constitutes a “structure or facility” related to the pipeline in an entirely new horizontal and deep subterranean, vertical location.
- Bear no resemblance – The location, magnitude, and nature of the proposed tunnel and oil pipeline infrastructure for the Straits bear no resemblance to the specific location and design incorporated into the former Public Utility Commission’s 1953 Order that approved the existing dual Line 5 pipelines 67 years ago. The 1953 Easement from the State of Michigan and the corresponding 1953 MPSC Order authorizes the dual pipeline infrastructure siting limited to the exact location on the lakebed floor, not a deep subsurface tunnel and tunnel pipeline proposed to be sited 60 to 250 feet below the Straits.
- Not the legal successor – The Enbridge subsidiary Enbridge Energy, Limited Partnership, is not the legal successor in interest to the original 1953 Easement Agreement between Lakehead Pipe Line Company and the State of Michigan and the 1953 MPSC Order, and cannot rely on these legal documents to avoid a certificate of necessity review by the MPSC.
- Inseparable – The tunnel and tunnel pipeline are inseparable in Enbridge’s own descriptions and assertions in this and other applications, and one cannot be applied for, nor approved, without the other.
- Not authorized – Enbridge lacks a lawfully authorized property interest to locate or construct the tunnel and oil pipeline under the Straits of Mackinac. Because the bottomlands under the Straits are owned and held by the State in public trust, Enbridge is required to obtain authorization for a public utility easement from the Michigan Department of Natural Resources and then obtain authorization for the conveyance and 99-year lease from the Michigan Department of Environment, Great Lakes, and Energy under the Great Lakes Submerged Lands Act.
“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”
“We’re talking about water, climate, and the plummeting demand for crude oil,” Olson said. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”