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FLOW to Michigan Public Service Commission: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Editor’s Note: FLOW submitted the following comments today to the Michigan Public Service Commission in advance of the MPSC’s March 17, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the MPSC’s March 17 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or [email protected] with any questions.


Dear Honorable Members of the Michigan Public Service Commission (“MPSC”):

Thank you for the opportunity to comment.

FLOW urges the MPSC to suspend further consideration of this ill-conceived oil tunnel project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies. 

We have previously provided the MPSC with detailed analyses of this issue. Suffice it to say, Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MPSC to continue considering Enbridge’s proposal at this time.

If the MPSC decides, to the peril of Michiganders, to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before  the MPSC indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MPSC must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.

FLOW to Mackinac Straits Corridor Authority: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

Editor’s Note: FLOW submitted the following formal comments today to the Mackinac Straits Corridor Authority in advance of the Authority’s February 16, 2022, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac. See the Authority’s February 16 meeting agenda, and learn about the opportunity to comment in person or online. Members of the media, please contact FLOW Legal Director Zach Welcker at (231) 620-7911 or [email protected] with any questions.


Dear Honorable Members of the Mackinac Straits Corridor Authority (“MSCA”):

Thank you for the opportunity to comment.

FLOW urges the MSCA to suspend further consideration of this ill-conceived project until Enbridge seeks and obtains legal authorization to occupy state bottomlands from appropriate state agencies. 

We have previously provided the MSCA with detailed analyses of this issue and hereby incorporate those by reference in lieu of repeating them here. See FLOW’s September 21, 2021 Letter; FLOW’s March 5, 2020 Comments; FLOW’s December 18, 2018 Comments; oral testimony to the MSCA on March 6, 2020, February 3, 2021, and October 13, 2021. Suffice to say, Enbridge has not received authorization from EGLE to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the DNR made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960). Thus, it would be a waste of time and resources for the MSCA to continue considering Enbridge’s proposal at this time.

If the MSCA decides to the peril of Michiganders to disregard Enbridge’s lack of authorization for this project, it must contend with the fact that Enbridge’s proposal to build a new oil pipeline inside a new tunnel underneath the Straits of Mackinac has ballooned into a supersized infrastructure project. In comparison to the original project, the diameter of the tunnel will now require a tunnel boring machine four times the size initially proposed. Correspondingly, the amount of excavated material that must be transported and disposed of has quadrupled.

Testimony from Enbridge’s geotechnical expert, Michael Mooney, before the Michigan Public Service Commission (“MPSC”) indicates that the tunnel must also be bored deeper than the original design, stating: “The depth to rock was determined to be deeper than assumed during the Alternative study and the resulting vertical profile takes the tunnel deeper in order to remain fully within rock. The geotechnical investigation also revealed highly fractured rock in places that would yield high groundwater pressures during construction.” On file with the MPSC, pp. 19-20.

Yet Enbridge’s initial $500 million estimate of the cost of the tunnel has not been revised. Experts have raised a host of related geotechnical and safety concerns. Significantly, Enbridge has also recently informed the Federal Energy Regulatory Commission that climate concerns may limit the expected service life of the proposed tunnel to twenty years. The MSCA must accordingly reevaluate the prudence of moving forward with this project in light of these significant developments.

December Marks 50th Anniversary of Drinking Water Tunnel Disaster

Fifty years ago, on December 11, 1971, 22 workers died in a tragic explosion while completing a tunnel designed to bring Lake Huron drinking water to the Detroit metropolitan area. The anniversary of the disaster was marked by a ceremony earlier this month.

“We are honoring the 22 men who paid the ultimate sacrifice for our clean drinking water and they need to be remembered,” said Joel Archibald, business manager for a labor union that organized the ceremony.

The project had been a dream of the Detroit water department since the late 1800s. The water supplied by the utility’s intake in the Detroit River was adequate to meet the city’s needs, but even then, there was thought of population growth to the north. That would require more water. By virtue of both proximity and quality, Lake Huron was the choice for the new water source. A point five miles offshore was chosen for the intake.

A memorial to the dead in Fort Gratiot County Park, close to the junction of the pipeline with land, consists of three features:  a plaza of bricks etched with the names of the loved ones who perished in the disaster, and other individuals and groups who purchased and contributed them; the statue of a symbolic project worker; and a state historical marker. The last is especially noteworthy. It is literally two-faced. The two sides of the marker could not be more different in tone.

One side stresses the tragic human losses and the terrible power of the explosion:  “… [A] shotgun-like blast claimed the lives of 22 men working on a water intake tunnel beneath the bed of Lake Huron. A pocket of methane trapped within a layer of ancient Antrim shale fueled the explosion. An exhaustive inquiry determined that drilling for a vertical ventilation shaft from the lake’s surface had released the trapped gas … The blast created a shock wave with a speed of 4,000 miles an hour and a force of 15,000 pounds per square inch. Witnesses reported seeing debris fly 200 feet in the air from the tunnel’s entrance.”

The other side emphasizes the project itself as a triumph of humankind: “In 1968, to serve the water needs of a growing population, the Detroit Metro Water Department began work on the Lake Huron Water Supply Project. This massive feat involved erecting a submerged intake crib connected to a six-mile intake tunnel beneath Lake Huron. The mechanical mole that dug the 16-foot wide tunnel bored through the bedrock beneath the lake at a rate of 150 feet a day. The project excavated more than one billion pounds of rock. The water treatment plant pumped clean water into an 82-mile system of water mains supplying Detroit and Flint. When finished in 1973, the $123 million system boasted a capacity of 400 million gallons a day.”

The disaster, and the memorial, are a reminder that the expansion of the Detroit drinking water system came at a big cost.

FLOW to Mackinac Straits Corridor Authority: No Enbridge Oil Tunnel Without Authorization Under Public Trust Doctrine

FLOW Founder and Senior Legal Advisor Jim Olson submitted the following statement to the Mackinac Straits Corridor Authority as part of a September 20, 2021, public meeting regarding Enbridge’s oil tunnel proposed through public bottomlands in the Straits of Mackinac and the Line 5 Easement, Assignment, Tunnel Agreement, and 99-year lease.

Dear Honorable Members of the Mackinac Straits Corridor Authority:

Thank you for setting up the public information session today. The importance of the issues surrounding the decisions you face as members of the Authority cannot be overstated. This is particularly the case, because while the information regarding the details of construction, geotechnical, risk, health, environmental, and tribal and cultural issues remain crucial, the patently lack of authorization under the State’s public trust laws, statutes, and duties lays bare a fundamental question that must be answered and complied with before further investments of time, money, and resources by the State and Enbridge. In the absence of such authorizations for the tunnel easement, our assignment to Enbridge, the 99-year lease, and the purported right of continued occupancy under paragraph 4.2 of the Third Agreement, the continued movement forward continues to put the State and Enbridge, and the State’s citizens at risk.

FLOW and many organizations, appeared and testified before this Authority on Friday, March 6, 2020. At that time, FLOW submitted a legal analysis and comment, dated March 5, 2020, and on March 6, 2020 made an oral presentation to the Mackinac Straits Corridor Authority (”MSCA” or “Authority”) that is part of the record in this matter. FLOW reiterated these comments in a statement to the Authority on February 3, 2021.

I realize that there are new members of the Authority, so, I have attached the above link to this analysis and incorporate the above comments and statements into the comments below. Without waiving the several points contained in FLOW’s analysis and comments, today, I want to underscore the fact and law that the DNR Easement, the Assignment from you to Enbridge, and the Tunnel Agreement provisions calling for a 99-year lease have not been authorized under the rule of law of the public trust doctrine:

  1. These documents are subject to the GLSLA, 324.32502-32508 and rules, but to date the agreements and conveyance documents have not been authorized under the GLSLA;

  2. The DNR Tunnel right of way or Easement purports to be authorized under Act 10, now MCL 324.2129, for a public utility easement. However, the DNR has never authorized it based on the required findings under the public trust doctrine, an absolute necessity based on the position of the State, AG Nessel, and DNR in the Ingham County cases: Nessel v Enbridge; and State Governor and DNR Director v Enbridge.

Until this authority is obtained by Enbridge, no contracts should be signed, no monies spent, and no construction commenced; to do so, would be at MSCA’s and Enbridge’s own risk. For this reason, you, the members of MSCA, are requested, respectfully, to ask for an Opinion of Attorney General Dana Nessel, on the serious question of the lack of required authorization of the 2018 Easement, the Assignment of Easement, and the Tunnel Agreement/99-Year Lease Agreement for occupancy and use of the State’s sovereign public trust bottomlands and waters of the Great Lakes.

Thank you. Should you have any questions, or your AG staff have questions, we remain available to discuss the same.

Sincerely yours,

James Olson

Founder and Sr. Legal Advisor

For Love of Water (FLOW)

Line 5 Oil Tunnel: U.S. Army Corps Environmental Study Marks a Return to the Rule of Law

By Jim Olson and Nora Baty

Jim Olson is FLOW’s Founder and Legal Advisor

In recognition of the critical importance of the Great Lakes and the rule of law, the United States Army Corps of Engineers (USACE) announced June 23 that the federal agency will conduct an environmental impact statement (EIS) for Enbridge’s Line 5 oil tunnel proposed for the Straits of Mackinac–handing citizens and communities battling the existential threat of climate change an important victory.

These evaluations delve into critical questions of risks, impacts, and alternatives—particularly a “no action” alternative when it comes to the falling demand for crude oil and the blazing heat waves across North America. Because of the depth of this evaluation and based on past practice, the EIS process will likely take three-and-a-half years to complete. While this may result in no tunnel or delay a tunnel, if it is ever built, the decision points to an even more critical action: It’s time to double-down on an orderly shutdown of the perilous Line 5 Pipelines in the Straits of Mackinac.

“The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs.”

Nora Baty is a Milliken Law and Policy Intern at FLOW.

Governor Whitmer and the Department of Natural Resources, under their solemn public trust duty to exercise prudence to protect the Great Lakes from a massive oil spill that would cost more than $6 billion, had little choice but to revoke the 1953 easement and close the 70-year old hazard. With the falling demand for crude oil, and capacity in other pipelines that criss-cross the continent, adjustments in oil transport can meet Canadian demand and the relatively minor need for crude oil from Line 5 for Michigan.

Finally a Full and Comprehensive Environmental Impact Statement

Under the National Environmental Policy Act (NEPA), an EIS is required for major projects “significantly affecting the quality of the human environment.” The law, as contemplated, established rules to ensure that the federal government considers the health and environmental effects and alternatives to actions proposed by corporations seeking permits. Under the NEPA rollbacks by the Trump Administration, agencies and citizens had little chance to trigger an EIS under NEPA, despite the magnitude of the action and environmental risks.

Now under the Biden Administration, “The Army will ensure all voices are heard in an open, transparent and public process through development of the EIS and is committed to ensuring that meaningful and robust consultation with tribal nations occurs,” according to a press release. The USACE’s decision to require an environmental impact statement and its commitment to the rule of law are important to ensure there is a robust record examining the impacts of the proposed project, using scientific data and expert opinions, and that alternatives to the project are adequately considered. 

Courts and agency decisions have rejected projects with incomplete scientific data or that fail to assess alternatives to avoid environmental impacts. Earlier this year, Michigan Administrative Law Judge Daniel Pulter denied the Back-Forty permit for a massive mining project in Michigan’s Upper Peninsula because the underlying hydrogeologic information, wetland impacts, and the potential alternatives were not adequately evaluated. 

FLOW’s legal team aided in this effort in December 2020 by submitting comprehensive comments to the U.S. Army Corps of Engineers calling for an environmental impact statement on behalf of a dozen organizations: Chippewa Ottawa Resource Authority, Clean Water Action—Michigan, FLOW, Groundwork Center, League of Women Voters of Michigan, Michigan Environmental Council, Michigan League of Conservation Voters, NMEAC, Sierra Club Michigan Chapter, Straits Area Concerned Citizens for Peace, Justice and Environment, Straits of Mackinac Alliance, and TC 350. The comments demonstrated a serious gap in Enbridge’s incomplete evaluation of the presence of loose, unconsolidated rock and sediment in the bottom of the Straits of Mackinac that the company at one point characterized as solid bedrock.

This EIS decision marks a return to NEPA’s mandate that the federal government review major projects to the “fullest extent possible.” This is particularly important for Line 5 in light of the decreasing demand for crude oil and the shift in Canada and the U.S. to renewable energy (wind, solar, conservation), and a “no action” alternative to the tunnel is more likely than ever.

Line 5 Is No Longer Necessary

The no action alternative for a proposed project, such as Enbridge’s proposed oil tunnel, looks at the effects of not approving the action under consideration. Here, Enbridge will need to prove, first, that the tunnel and Line 5 are even needed, and second, if there is a need, that there are no other routes or existing lines into Ohio, Michigan, and into Canada. According to FLOW’s experts, 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 competition without threatening our public waters, including Enbridge’s Line 78 across southern Michigan.

Unfortunately for Enbridge, and fortunately for the climate, the energy landscape is shifting and renewable energy growth is accelerating. At the same time, the beginning of Line 5 tunnel construction looks farther and farther away. One study found that such federal reviews, known as environmental impact statements, take an average of nearly 3-and-a-half years to complete, and then permits and construction would take years longer after that.

The tunnel may or may not be constructed. While Enbridge continues to operate Line 5 in the Straits, violating the law, and threatening the Great Lakes and the region’s economy, the existing dual pipelines pose an unacceptable risk of massive harm to the Great Lakes, communities, citizens, and businesses. The reality is that we can no longer wait for Line 5 to be shut down. It is time for the court process and the State and citizens of the Great Lakes Basin to bring the State’s revocation of Enbridge’s 68-year old easement and pipeline to a close.

FLOW Praises Decision Today by Michigan Public Service Commission to Consider Climate Impacts in Permit Case for Proposed Oil Tunnel in Great Lakes

The following is in reaction to the Michigan Public Service Commission’s ruling today regarding the scope of review for permitting required for Enbridge to replace and relocate its decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a single new pipeline.

FLOW and other organizations and tribes have formally intervened in the MPSC contested case process for siting the tunnel and pipeline to assert that Michigan law requires a comprehensive review of the project’s necessity, impacts, and alternatives in the context of climate change and the ongoing rapid transition to renewable energy sources.

“FLOW applauds the MPSC’s careful commitment to science, sound economics, and the public interest,” stated Liz Kirkwood, executive director of For Love of Water (FLOW). “The Commission’s decision is significant because it recognizes that the Michigan Environmental Protection Act applies to consideration of greenhouse gas emissions that would be spurred by Enbridge’s proposed oil pipeline tunnel. The MPSC clearly understands the need to accelerate the energy transition, adopt clean energy solutions, and avoid the environmental and economic impacts of legacy fossil fuels.” 

Jim Olson, FLOW’s founder and legal advisor, said, “The MPSC’s decision demonstrates true leadership to address the transport and consumption of crude oil and the devastating effects crude oil has on the climate and the Great Lakes, infrastructure, and our quality of life in the 21st century.”

Background on Line 5 and the MPSC

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:

For more information, see FLOW’s Line 5 fact sheets and blogs:

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: