By: FLOW Chair, Skip Pruss
Taking Legal Action
Recently, John Sellek, Attorney General Bill Schuette’s campaign spokesperson, pushed back on the charge that the Attorney General could have taken legal action to shut down the Enbridge Line 5 petroleum pipelines at the Straits of Mackinac, stating “If this claim about the easement [filing a lawsuit] was so simple, then I am sure you would agree that Attorney General Jennifer Granholm and Attorney General Frank Kelley would have done it long ago.”
The problem with Sellek’s statement is the threat posed by Line 5 didn’t hit the public’s radar until 2010, when concerns were triggered by the expansion of other pipelines and after Enbridge’s Kalamazoo River spill became the largest inland pipeline spill, measured by area affected, in U.S. history.
But Sellek’s comment obscures the more important issue: Bill Schuette has always had ample legal authority to seek termination of the easement for Line 5. What is more, there is legal precedent for such action.
In 1986, Frank Kelley, then Attorney General for the State of Michigan, filed legal actions against Consumers Power Company and The Detroit Edison Company for fish mortality associated with the operation of the Ludington Pumped Storage Facility (LPSF) which was, at the time, the largest pumped-storage facility in North America. The LPSF, which continues to operate today, stores 27 billion gallons of Lake Michigan waters in a reservoir 5.5 miles in circumference to produce electricity during times of peak demand.
The problem was that the pumping cycles of the LPSF killed millions of sports fish as well as the forage fish they depended on.
Kelley filed two lawsuits; one for $300 million in monetary damages for the economic impact on Michigan’s sports fishery, and another seeking termination of the state lease for Lake Michigan bottomlands that are an integral part of the LPSF.
The lawsuits alleged violations of the Great Lakes Submerged Lands Act, the Michigan Environmental Protection Act, the common law of nuisance, and violation of the Public Trust Doctrine. These same laws remain operative today and provide a clear legal basis for Bill Schuette to file suit to revoke the easement for Line 5 on Lake Michigan bottomlands.
In particular, the Public Trust Doctrine is a powerful legal framework to address the catastrophic threat posed by Line 5. The doctrine holds that the waters and bottomlands of the Great Lakes are held in a public trust for the benefit of the people. And further, the State of Michigan, through its attorneys general, has what the Michigan Supreme Court has stated is a “high, solemn and perpetual duty” to protect public trust resources from impairment or destruction.
Bill Schuette has that duty, and he has acknowledged that Line 5 presents an unacceptable risk stating that “you wouldn’t site, and you wouldn’t build and construct pipelines underneath the Straits today.” Schuette’s assessment implies that a state-of-the-art, 21st Century pipeline presents an unacceptable risk, yet he has not initiated any legal proceedings despite the growing evidence that the integrity of Line 5 may be dangerously compromised.
Line 5 is showing a number of red flags. Facts compiled by For Love of Water demonstrating impacts to and degradation of Line 5 would support the attorney general’s legal claims:
- Continuing scouring of bottomland support beneath the pipelines contrary to and in violation of 1953 Easement and original “as built” design.
- Abrasion and loss of coating from the movement of the supports that are fastened to the pipelines.
- Documentation that corrosion has occurred on the pipelines in nine locations and evidence of deformities or bending in the pipelines.
- Observations that there are 55 “circumferential” cracks and loss of wall thickness in the pipelines.
- As a result of the failure of the original design due to scouring and strong currents, the continual addition from 2001 to 2018 of 150 saddles and support, which have completely altered the original design and suspend almost 2 miles of pipelines above bottomlands of the Straits without legal authorization.
- Anchor strikes that have dented the pipeline in three locations.
These facts support a finding that Line 5 poses an imminent risk. Under the law, the concept of “imminent risk” has two components – the likelihood of a failure and the potential magnitude of the harm. A study by the University of Michigan Water Center and modelling work done by the National Wildlife Federation have amply demonstrated the magnitude of potential harm by showing how a Line 5 failure would disperse oil and natural gas liquids throughout northern Lakes Michigan and Huron. And a recent Michigan State University study commissioned by FLOW shows potential economic damages that could exceed $6.3 billion.
Line 5, if it continues to operate, will fail eventually. It is unscientific and reckless to suggest that it can function indefinitely. While it is true a legal action to compel a shutdown could take considerable time, failure to take legal action is a breach of the attorney general’s legal obligation to the citizens of Michigan under the Public Trust Doctrine.
So, what was the result of Attorney General Kelley’s action in 1986?
The Michigan Court of Appeals held that “because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources” but denied the state’s request to void the lease for state bottomlands. Both parties appealed to the Michigan Supreme Court, but the case was settled before the Court rendered a decision.
The result: A settlement valued at $177 million (1995 dollars), establishment of the Great Lakes Fisheries Trust, conveyance of over 24,000 acres of pristine lands to the State of Michigan (including 70 miles of undeveloped river frontage), 12 new public fishing sites on the Great Lakes, and prophylactic measures implemented to reduce fish mortality at the LPSF.
As Attorney General, Frank Kelley obtained a major victory for the public interest in a situation involving an unacceptable use of publicly-owned Great Lakes bottomlands. It is time for Schuette to act on Line 5, not make excuses.