Author: FLOW Editor

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 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.

Biden Energy Plan Puts Science and the Public Trust First to Protect the Climate, Fresh Water

Skip Pruss is the former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth.

Above photo courtesy of Biden-Harris transition

By Skip Pruss

History will mark 2021 as the year the United States finally got serious about combating climate change and protecting water security.

The Biden administration appears to fully comprehend the depth and gravity of current climate trends and is prepared to take action commensurate with the challenges we face. The Biden transition team has already developed detailed plans integrating consideration of climate impacts into the federal government’s core mission, programs, and policies.

The Biden Plan for A Clean Energy Revolution And Environmental Justice is a call to immediate action, using existing federal agency resources and tools to jumpstart efforts to accelerate deployment of clean energy technologies, reduce greenhouse gas (GHG) emissions at their sources, and adopt agricultural and public land management practices that sequester carbon.

“Every dollar spent toward rebuilding our roads, bridges, buildings, the electric grid, and our water infrastructure will be used to prevent, reduce, and withstand a changing climate.

– Biden Climate Plan

The climate crisis is time critical. 

As the global economy continues to pump billions of tons of carbon dioxide and other greenhouse gases into the atmosphere, the window of opportunity to avoid the most catastrophic effects of climate change is rapidly closing.  Climate science tells us that the warming effects of GHGs persist in the atmosphere, and the cumulative loading of these pollutants will soon increase global temperatures more than 1.5 degrees Celsius — unless we take immediate action.

The last four years brought federal policies aimed at increasing the development and use of fossil fuels, exacerbating the crisis and squandering precious time. Decarbonizing the global economy is now an existential imperative.

“Precisely because we’ve waited so long to take any significant action, physics now demands we move much faster than we want to.”

– Bill McKibben, founder of the grassroots climate campaign 350.org

That is why the incoming Biden Administration’s climate plan is so important. 

The Biden plan represents a radical departure from status quo policies that created the climate crisis. Key directives include:

  • Achieving a 100% clean energy economy and net-zero emissions no later than 2050 with an enforceable 2025 interim goal.
  • Committing that every federal infrastructure investment should reduce climate pollution and requiring any federal permitting decision to consider the effects of greenhouse gas emissions and climate change.
  • Banning new oil and gas permitting on public lands and waters, demanding a worldwide ban on fossil fuel subsidies, eliminating international financing of dirty energy, and “naming and shaming global climate outlaws.”
  • Requiring public companies to disclose climate risks and the greenhouse gas emissions in their operations and supply chains.
  • Developing rigorous new fuel economy standards aimed at ensuring 100% of new sales for light- and medium-duty vehicles will be electrified.
  • Designing a framework to limit greenhouse gas emissions related to land use, forests, and agriculture and promulgating new standards for the greening of manufacturing, mining, and tourism.
  • Protecting biodiversity, slowing extinction rates, and helping leverage natural climate solutions by conserving 30% of America’s lands and waters by 2030. 
  • Implementing community-driven approaches to develop solutions for environmental injustices affecting communities of color, low-income, and indigenous communities.

      Effectively attacking climate change entails eliminating the carbon contribution of the global energy system, reforming land and water management practices, and greatly enhancing the capacity of government to mitigate and adapt to climate change. It also requires putting science first and recognizing that the earth’s hydrosphere is one inextricably interconnected global system — a “commons” upon which we all depend that must be protected by the government as a public trust and managed using the best science available.

      FLOW has long advocated broad application of the Public Trust Doctrine as a framework for recognizing that the atmosphere, land, and water is one dynamic, integrated natural system upon which the health and vitality of all life depends. FLOW’s efforts to shut down Line 5 are motivated not only by the need to protect the Great Lakes — the largest and most valuable freshwater system in the world — from a catastrophic pipeline failure, but also by the recognition that continued long-term investment in fossil fuel infrastructure is inconsistent with our responsibility to protect the planet.

      FLOW’s approach to advancing policy to protect our Great Lakes has been ambitious and cutting-edge. We have advocated for broad application of the Public Trust Doctrine as a legally required fiduciary duty of government to protect the common interest in public trust resources for the benefit of all citizens.

      FLOW has been steadfast in carrying out its mission, and today FLOW’s successes have measurably enhanced state, federal, and international governance to better protect the environment:

      • In response to FLOW’s advocacy, the International Joint Commission has embraced the Public Trust Doctrine as the management framework for protection of Great Lakes waters.
      • FLOW’s constant efforts to prevent commodification of water by private corporations have successfully pushed back on efforts to expand water extraction for private sale.
      • Most recently, Michigan Governor Gretchen Whitmer and Attorney General Dana Nessel have moved to shut down Line 5, the 67-year-old oil pipeline that presents a clear and present danger to our environment and our regional economy. As advocated by FLOW, the Governor’s and Attorney General’s legal actions are based upon the application of the Public Trust Doctrine.

      FLOW commends the Biden Administration’s unprecedented efforts to address the climate crisis. We will continue to advocate for science-based, state-of-the-art policy, and we will continue to coordinate and collaborate with local, state, and federal agencies and commissions in implementing efficient, effective climate solutions.

      Will Michigan Keep the Water on during COVID-19?

      Pritchard is FLOW’s interim legal director

      By Janet Meissner Pritchard

      COVID-19 has already taken the lives of more than 8,100 Michiganders, and the pandemic is surging in Michigan, with more than 7,000 new cases per day diagnosed in Michigan over recent days. Given this grim context, it is essential for public health to secure access to safe, affordable drinking water for all Michiganders.

      Since the onset of the pandemic, Governor Gretchen Whitmer has taken actions to do just that. In March, she issued an Executive Order requiring the restoration of water services for households whose water had been shut off due to inability to pay. In July, she extended that order to remain in place through December 2020, and state funds were authorized to help relieve water bill debt for families unable to pay during the public health emergency.

      Michigan Senate Bill 241 Would Halt Water Shutoffs during the Pandemic

      On October 12, however, the Michigan Supreme Court ruled that most of Gov. Whitmer’s emergency orders issued after April 30 were unconstitutional, including those requiring water service restoration. On the same day, a group of Michigan legislators led by State Senator Stephanie Chang introduced a new version of Senate Bill 241 (SB241) that would effectively codify Whitmer’s emergency orders requiring the restoration of water services to keep these important protections in place while Michigan continues to battle COVID-19. The Executive Order issued in July had extended protections through the end of this year. In light of the continuing threat of the pandemic, legislators are expected to negotiate a new date through which these protections should remain in place.

      Water shutoffs not only endanger the lives of those who cannot afford their water bills, but also the lives of others with whom they come into contact. As emphasized in the Centers for Disease Control and Prevention’s guidance on protection from the coronavirus, frequent and thorough hand washing is recommended to protect yourself and others from spreading the virus. Accordingly, clean and available water for all is essential to help stop the spread of COVID-19.

      The duty to protect Michiganders now lies with the state legislature. In the month since the Michigan Supreme Court decision invalidated Governor Whitmer’s emergency orders, the legislature has restored some of those same orders, but not the temporary ban on household water shutoffs. Legislators are expected to consider SB241, however, when they reconvene in early December. Specifically, SB241 would: 

      • Put into place a moratorium on shutting off residential water for non-payment;
      • Restore residential water services to those without water due to non-payment;
      • Require the water utility to make a best effort to rectify the situation in cases where a residential unit lacks water but it is not due to non-payment,;
      • Mandate that water utilities report every 30 days on their efforts to identify residential units without water and to restore water services. 

      Since the onset of the pandemic, 29 states have taken action to ensure residential access to safe water to fight COVID-19. With confirmed cases at their highest level ever, now is not the time to allow these protections to lapse in Michigan.

      A Decades-long Fight for Water Justice

      The People’s Water Board Coalition (PWBC) and the Michigan Welfare Rights Organization (MWRO) have been working for decades to secure protections against water shutoffs. Until recently, however, it has been difficult to obtain data on water shutoffs — households that have been shut off due to non-payment, shut off households where service has been restored, and households at risk of being shut off. Following Governor Whitmer’s emergency orders to restore water service to shut off households, PWBC, MWRO, and allied organizations successfully advocated for Michigan legislators to pass Senate Bill 690, which includes the appropriation of federal COVID-19 relief funds to support the restoration of water services. Advocates also successfully argued for this law to include data reporting measures requiring municipal water systems that apply for these funds to report information on water shutoffs, service restoration, and water bill arrearages to the Michigan Department of Health and Human Services (DHHS). 

      Using this data collected by DHHS, the National Resources Defense Council (NRDC) has calculated that approximately 800,000 Michiganders — in both rural and urban communities — are water insecure. That is, they either live in households without access to residential water services or are at risk of having their water shut off if protective measures such as those in SB241 are not in place. According to data reported to DHHS by municipal water systems, water bills for 317,631 households throughout the state had fallen into arrears since March 1, 2020. Based upon an average household size of 2.49 per household, this equates to approximately 800,000 Michiganders — or about 8% of the state’s population — who are water insecure.

      Without the protections afforded by SB241, this number will likely grow as the economic impacts of the pandemic continue. The water bill arrearage data reported to the MDHHS are an indication of Michiganders’ struggle to cope financially, even with the support provided to households through the federal CARES Act passed at the start of the pandemic crisis. Financial supports such as extended unemployment insurance and a moratorium on evictions are due to lapse on December 31, 2020, and have yet to be extended by the U.S. Congress. With the pandemic surging and uncertainty as to if or when the federal government will provide further financial support to struggling families, the number of water insecure households in Michigan is likely to surge as well, if SB241 is not passed by state legislators with urgency.  

      FLOW and our allies are asking Michigan residents to contact your legislative representatives as soon as possible and urge them to support SB241. Here are some talking points to keep in mind: 

      • It is estimated that approximately 800,000 Michiganders are at risk of having their water shut off due to inability to pay their water bills during the pandemic, if the moratorium on shutoffs is not reinstated.  
      • The CDC states that frequent handwashing is an important measure to prevent the spread of COVID-19. 
      • Maintaining health measures like frequent handwashing is essential to slowing the spread of the coronavirus to enable the full reopening of Michigan’s economy and job recovery. 

      Ask your state legislators: 

      • Will you support the passage of SB241 to secure access to safe tap water during this pandemic?
      • Will you ask your party’s legislative leaders to move SB241 quickly?

      It is important to line up as many legislators as possible behind this bill. Click here to find contact information for your state senator. In particular, advocates of the bill are targeting the following state senators, so if you live in one of the districts identified below, your efforts to contact your senator could be particularly impactful. The number of water insecure households listed for each district is based on data recently reported to DHHS.

        • Sen. Majority Leader Mike Shirkey (16th district) has at least 4,098 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-5932
          • SenMShirkey@senate.michigan.gov
        • Sen. Dale Zorn (17th district) has at least 5,149 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-3543
          • SenDZorn@senate.michigan.gov
        • Sen. Pete Lucido (8th district) has at least 8,173 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-7670 or toll free at (855) DIST-008
          • SenPLucido@senate.michigan.gov
        • Sen. Curt VanderWall (35th district) has at least 276 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1725
          • SenCVanderWall@senate.michigan.gov
        • Sen. Aric Nesbitt (26th district) has at least 781 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-0793
          • SenANesbitt@senate.michigan.gov
        • Sen. Jim Runestad (15th district) has at least 1,358 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1758
          • SenJRunestad@senate.michigan.gov
        • Sen. Dan Lauwers (25th district) has at least 5,639 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-7708
          • SenDLauwers@senate.michigan.gov
        • Sen. Lana Theis (22nd district) has at least 744 households in her district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-2420 or toll free at (855) DIST-022
          • SenLTheis@senate.michigan.gov
        • Sen. Ruth Johnson (14th district) has at least 475 households in her district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1636
          • SenRJohnson@senate.michigan.gov
        • Sen. Kim LaSata (21st district) has at least 2,566 households in her district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-6960
          • SenKLaSata@senate.michigan.gov
        • Sen. John Bizon (19th) has at least 11,784 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-2426
          • SenJBizon@senate.michigan.gov
        • Sen. Tom Barrett (24th district) has at least 805 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-3447
          • SenTBarrett@senate.michigan.gov
        • Sen. Kevin Daley (31st district) has at least 2,156 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1777
          • SenKDaley@senate.michigan.gov
        • Sen. Ken Horn (32nd district): has at least 15,555 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1760 or toll free (855) 347-8032
          • SenKHorn@senate.michigan.gov
        • Sen. Roger Victory (30th district) has at least 15 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-6920
          • SenRVictory@senate.michigan.gov
        • Sen. Jon Bumstead (34th district) has at least 7,591 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-1635
          • SenJBumstead@senate.michigan.gov
        • Sen. Rick Outman (33rd district) has at least 1,638 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-3760
          • SenROutman@senate.michigan.gov
        • Sen. Jim Stamas (36th district) has at least 1,450 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-7946 or toll free at (855) 347-8036
          • SenJStamas@senate.michigan.gov
        • Sen. Wayne Schmidt (37th district) has at least 2,107 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
          • (517) 373-2413
          • SenWSchmidt@senate.michigan.gov
        • Sen. Ed McBroom (38th district) has at least 4,581 households in his district that have fallen into arrears and are at risk of being shut off without SB241. 
      • Sen. Michael MacDonald (10th district) has at least 8,260 households in his district that have fallen into arrears and are at risk of being shut off without SB241.
        • (517) 373-7315 
        • SenMMacDonald@senate.michigan.gov

      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.

      Oil & Water Don’t Mix with the Public Trust in the Great Lakes

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

      By Jim Olson

      In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action. 

      The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.

      Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.

      Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case

      That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person. 

      Line 5 passed that threshold many years ago. 

      To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.

      Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries. 

      There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.  

      A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.

      This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount. 

      Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.

      Fact Check: When Line 5 Shuts Down, Detroit Jets Will Still Fly and Union Refinery Jobs Will Still Exist

      Photo credit: Kathryn DePauw

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      By FLOW Staff

      Gov. Gretchen Whitmer and the State of Michigan have taken legal action to shut down Line 5 in the Straits of Mackinac by next May to prevent a catastrophic oil spill in the Great Lakes from the 67-year-old pipeline. Meanwhile, Line 5-owner Enbridge and its allies continue to engage in a Chicken Little “sky is falling” campaign, with the Canadian company claiming in recent days that, “shutting down Line 5 would cause shortages of crude oil for refineries in Michigan, Ohio, Pennsylvania and eastern Canada, as well as propane shortages in northern Michigan. It also would boost shipments of oil by rail or trucks, Enbridge said, without providing any evidence.

      Enbridge’s drumbeat of fear has been building for a few years, for example, with a full-page advertisement in 2019 in the Traverse City Record-Eagle, alleging that “Shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.”

      In fact, none of those predictions materialized when both legs of the dual Line 5 pipelines in the Straits were shut down for more than a week last June and one leg remained closed until about mid-September following damage that the U.S. Coast Guard said likely was caused by an Enbridge-contracted vessel. Research conducted during the partial shutdown by former Dow Chemical engineer Gary Street found that in August after more than 50 days with at least one leg of Line 5 closed, gasoline prices and supply were unaffected in Michigan and Canada.

      The research results are consistent with these studies forecasting little if any change in energy costs after Line 5 shuts down for good:

      Upon the shutdown of Line 5, 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.

      • 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 Pure Michigan economy, according to FLOW’s experts.
      • A Line 5 shutdown could increase the cost of gasoline in metro Detroit by only about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration.
      • Shutting down Line 5 would add just five 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.
      • The Upper Peninsula has viable options to Line 5 for its propane supply and economy, according to FLOW’s research.
      • Oil & Water Don’t Mix has a great animated video showing how the Upper Peninsula does not need Line 5’s propane.

      Another claim regarding the impact of a Line 5 shutdown emerged last year from management of the PBF refinery in Toledo, Ohio. Likely at Enbridge’s behest, PBF warned of a refinery shutdown and loss of a thousand jobs if the supply provided by Line 5 is no longer available. The Toledo refinery, PBF suggested, has no other source of petroleum.

      This assertion immediately raised the question: What kind of refinery management would leave itself vulnerable by receiving crude from only one source? It also directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts. They emphasize the PBF refinery has several sources of supply and can adjust them depending on market conditions.

      “The [PBF] refinery only processes light/medium and sweet crude and gets most of its WTI crude through pipeline from Canada, the mid-Continent, the Bakken region and the U.S. Gulf Coast,” an analyst says.  Another credits PBF with using “its complex crude processing capacity to source the lowest cost input.” PBF says in its 2016 filing with the Securities and Exchange Commission that crude is delivered to its facility through three primary pipelines, Line 5 from the north, Capline from the south, and Mid-Valley from the south. Crude is also delivered to a nearby terminal by rail and from local sources by a truck to truck unloading facility in the refinery property.

      The fact is that multiple alternative pipelines, rail, and truck sources are and will be available to enable PBF to continue refining petroleum as it is today. No evidence points to job loss in Toledo from a Line 5 shutdown. And PBF itself said in a September 2017 news story challenging EPA regulations because of alleged job losses that the Toledo refinery employed 550, not 1,000 workers.

      After Line 5 is shut down, the small percentage of its light crude coming to the U.S. could be supplied by other sources currently serving the region, including the Capline and Mid-Valley pipelines, along with crude from Northern Michigan oil wells.

      Fanning employee and community fears with inflated claims is the latest in a series of tactics deployed by Enbridge and its allies to pressure Michigan officials into letting the company continue to occupy the Straits of Mackinac with its antiquated Line 5 pipeline, and later, a proposed oil pipeline tunnel under the lakebed.

      PBF also claims that a feared Toledo refinery shutdown, which research cited above dispels, would seriously impinge on the supply of jet fuel at Detroit Metropolitan Airport, driving up fares or reducing flights, or both. The claim is that 40% of the jet fuel used at the airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day, and again alternative pipeline sources can more than make that up.

      It is worth noting that prior to PBF’s claims made in 2019, the impacts of a Line 5 shutdown on Metro Airport jet fuel had never before been raised as an issue in the Line 5 debate. Now Canadian officials are singing the same tune to bring political pressure on the Whitmer administration, claiming this week that Line 5 “is the single largest supply for gasoline, ultimately, in southern Ontario; for aviation fuel out of the Detroit airport; for heating fuel in northern Michigan; for the refineries in northern Ohio that fuel much of the Midwest U.S. economy.”

      For its part, Enbridge has a track record of misleading the public and governments about its performance, including failure for 3 years to report bare spots in the protecting coating on Line 5 in the Straits, violating for several years the safety conditions of its easement agreement to occupy the public waters and bottomlands of the Straits, and running a dubious advertising campaign claiming to protect Michigan’s water. Enbridge’s and allies’ recent claims are consistent with the company’s apparent philosophy of avoiding transparency and saying anything to keep Line 5 petroleum and profits flowing.

      Key Facts, in a Nutshell

      Jobs, let’s talk jobs! 

      Continuing to operate the decaying Line 5 risks jobs. Many jobs. Shutting down Line 5 will protect hundreds of thousands of jobs in Michigan’s tourism economy. According to a FLOW-commissioned report in May 2018 conducted by an Michigan State University ecological economist, direct spending by tourists supports approximately 221,420 jobs, and the total tourism economy in 2016, including direct, indirect and induced impacts, supported 337,490 jobs—approximately 6.1% of total employment in Michigan.

      Toledo PBF Refinery 

      • Enbridge’s and fossil-fuel industry allies have a track record of false and unsubstantiated claims and a lack of transparency.
      • The numbers are inflated:
        • Enbridge and refineries and some politicians are misleading the public. They falsely claim that the two Toledo refineries and one Detroit refinery, and by extension the jobs there, are fully and wholly dependent on Line 5, including a large number of jobs at these refineries. The refineries supposedly affected are: Marathon-Detroit; BP-Husky-Toledo — which carries no Line 5 feedstock because it’s a tar sands refinery that takes feedstock from Line 78 (formerly Line 6B), and PBF-Toledo. PBF states in its 2018 annual report for stockholders that it “processes a slate of light crude oils from Canada, the Mid-continent and the U.S. Gulf Coast.”
        • The refineries rely on multiple pipelines and suppliers, and they say so in writing.
        • Marathon refinery primarily uses dilbit, which Line 5 doesn’t currently carry.

      Detroit Metropolitan Airport

      • In a letter to Michigan Gov. Gretchen Whitmer, Ohio Gov. Mike DeWine claimed, “our refineries supply the majority of aviation fuels to Detroit Metro Airport” and asserted shutdown of Line 5 would lead to airline schedule disruptions.
      • But 2020 jet fuel consumption at Detroit Metro will total 1,658,000 gallons per day, according to a 2010 estimate by the airport. Based on numbers published by PBF, BP Husky and Marathon Refineries, Line 5 appears to supply only about 10% of the jet fuel at Detroit Metro Airport, not 40% as claimed by Ohio Gov. DeWine. Both Marathon and PBF have other crude oil sources, and therefore other pipelines could provide feedstock to satisfy regional jet fuel needs. Alternatively, other nearby refineries in Illinois, Indiana and Ohio could make up this shortfall.

      Bottom line: Shutting down Line 5 will protect hundreds of thousands of jobs. A Line 5 shutdown would not significantly impact jobs at Toledo refineries. There is absolutely no evidence that a shutdown would impair operations at Detroit Metro Airport.

      Sources:

      FLOW Praises Gov. Whitmer for Upholding Public Trust Law on Line 5 by Revoking and Terminating Easement

      Today’s announcement by Governor Whitmer and Department of Natural Resources (DNR) Director Eichinger that the State of Michigan, under the public trust doctrine, is revoking and terminating the 1953 easement allowing Enbridge to operate dual pipelines in the Straits of Mackinac—due to repeated violations of the easement—represents a clear victory for the Great Lakes and the citizens and tribes of Michigan, said FLOW executive director Liz Kirkwood today.

      “As public trustees of our waters, the State of Michigan is affirmatively upholding the rule of law and protecting the public’s treasured Great Lakes from the clear and present danger of an oil spill catastrophe from Enbridge’s Line 5 pipeline.”

      “This is an historic day of state leadership by the Whitmer administration brought about by many years of dedicated action by environmental groups, Indian tribes, communities, businesses, faith communities, families, and individuals. People of diverse backgrounds have come together to work tirelessly on a common purpose—protecting the Great Lakes, drinking water, fishing rights, the economy, coastal communities, and a way of life from the most dangerous oil pipeline in America.

      “While this is a moment to celebrate, we must remain vigilant until the oil stops flowing for good in May 2021 because Line 5 remains exposed to uncontrollable and powerful forces, including exceptionally strong currents, lakebed scouring, new anchor and cable strikes, and corrosion. These forces dramatically increase the risk of this elevated, outdated pipeline collapsing and causing the unthinkable: a catastrophic oil spill in the heart of the Great Lakes.”

      Since 2013, FLOW has filed extensive legal and technical reports with the State of Michigan, including most recently in November 2019, citing extensive evidence of Enbridge operating Line 5 illegally and risking the public’s water. For more information, see FLOW’s original news archive.

      To view the State of Michigan documents relating to today’s announcement, click the links below:

      Support Wind, Waves, and Freshwater: Celebrating FLOW’s Business Partners

      FLOW is taking advantage of 2020 Shop Your Community Days in Traverse City, November 12-14, to celebrate our Business Partners who are supporting FLOW and our effort to protect the Great Lakes. Please support these businesses during Shop Your Community Days and the upcoming holiday shopping season. When you do, 5% of your purchase amount will be donated to one of 35 charities of your choice — including FLOW!

      FLOW Development Specialist Calli Crow recently chatted with Matt Myers, co-founder of the apparel brand M22, about their support for FLOW and protecting fresh water.

       

      FLOW: What is your favorite aspect of living near so much beautiful, freshwater?

      Matt Myers: Being active on the water, that’s what I live for. The kiteboarding, surfing, paddling, foiling, open water swimming – I love it all, and there is no better place in the world than the Great Lakes in the summer. Wind, waves and freshwater – it’s a dream!

      FLOW: What do you think is the biggest threat to the Great Lakes?
      Matt Myers: Contaminants — fertilizer, sewage, waste from slaughterhouses, leaky outdated oil pipelines … those are the things that worry me most. As we increasingly populate the shoreline, more and more people doing little things can add up and possibly devastated the natural ecosystem.
      FLOW: How did you learn about FLOW and why do you support our work?
      Matt Myers: We grew up watching and learning from Jim Olson, the founder of FLOW (and current President and Legal Advisor) — he is the water man! Even when I was a little kid I remember him talking about the lakes and water. He is a genius (truly) and has dedicated his life to protecting the Great Lakes. I deeply admire the energy, thought, care and perseverance he continues to pour into his work. Jim is the man on the ground making real change.

      FLOW Appeals ALJ’s Decision on Proposed ‘Line 5’ Oil Tunnel

      Source of tunnel graphic: Enbridge’s 2020 application to the U.S. Army Corps of Engineers.

      Source of tunnel graphic: Enbridge’s 2020 application to the U.S. Army Corps of Engineers.

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      FLOW on Nov. 6, 2020, filed an appeal with the Michigan Public Service Commission of the October 23 decision by Administrative Law Judge (ALJ) Dennis W. Mack granting in part Enbridge Energy Limited Partnership’s motion to exclude critical evidence from consideration by the MPSC in deciding whether to permit the siting of Enbridge’s proposed Line 5 oil pipeline tunnel through public trust bottomlands under the Straits of Mackinac, where Lake Michigan meets Lake Huron.

      FLOW’s appeal seeks to allow evidence that the proposed, roughly four mile-long oil pipeline tunnel under the Great Lakes would commit the citizens of Michigan for another 99 years to the unnecessary generation of more harmful greenhouse gases. According to the Michigan Department of Health and Human Services, greenhouse gas emissions already have resulted in the impairment of Michigan’s public health and natural resources – effects that will get worse unless CO2 emissions are abated.

      Nothing less than the authority of the MPSC to protect the people of Michigan, environment, climate, and public interest of the citizens of Michigan and the Great Lakes for years to come is at stake, according to arguments filed by FLOW and other intervenors and made orally at a September 30 hearing.

      “Authorizing a billion-dollar fossil fuel infrastructure project is fundamentally at odds with what science tells us must be done to avoid the most catastrophic effects of climate change,” said Liz Kirkwood, executive director of FLOW, a Great Lakes public trust law and policy center based in Traverse City. “Eliminating the determination of ‘public need’ when granting a Certificate of Necessity makes no sense.”

      FLOW’s appeal also contests the ALJ ruling that the MPSC need not make a finding of “public need” to transport up to 8 billion gallons of oil a year for nearly a century in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. The pipeline tunnel proposed by Enbridge is inseparable from the business of transporting oil through existing Line 5, the Candian company’s 67-year old pipeline that runs from Superior, Wisconsin, through Michigan and on to refineries in Sarnia, Ontario.

      Several market indicators suggest that investment in new pipeline infrastructure is highly questionable in light of clear trends indicating a precipitous drop in oil consumption in future years. Analysis released on August 9 by BNP Paribas, the world’s 8th-largest bank, reports “that the economics of oil for gasoline and diesel vehicles versus wind-and solar-powered EVs [electric vehicles] are now in relentless and irreversible decline, with far-reaching implications for both policymakers and the oil majors.”

      FLOW is joined by several other intervening parties in the case in appealing to the three-member MPSC to overturn the ALJ ruling. Lawyers filed a joint appeal on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and National Wildlife Federation, as well as a joint appeal on behalf of the Environmental Law & Policy Center and the Michigan Climate Action Network. Bay Mills Indian Community also appealed. Attorney General Dana Nessel also sought to support and join in the appeals filed by the groups and tribes.

      FLOW’s appeal requests that the MPSC:

      1. Reverse the ALJ’s granting of Enbridge’s motion to exclude evidence of public need and likely environmental effects and alternatives related to the new tunnel and tunnel pipeline and the intended purpose of the tunnel project to engage in business and operations to transport crude oil as part of the tunnel project and the existing Line 5 in Michigan; and
      2. Remand to the ALJ to take appropriate action to incorporate the excluded evidence into the discovery and evidentiary hearing that will be submitted as a full case to the MPSC for final decision and order.

      “We’re talking about water, climate, and the plummeting demand for crude oil,” said Jim Olson, FLOW’s founder and legal counsel. “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.”

      “Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project breaches the state’s duty to protect the public trust in the Great Lakes and is not good for the climate or Gov. Whitmer’s goals as the nation and world turn to clean energy for survival,” said Kirkwood.

      Many groups, including FLOW and Oil & Water Don’t Mix, have articulated scientific and legal deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.

      In more details, FLOW’s appeal asserts that:

      1. The ALJ erroneously restricted the Broad Authority of the Commission under Act 16 by excluding review of the new or extended business and operations to transport crude oil through the new tunnel and pipeline.
      2. The exclusion of evidence of “public need” under Act 16 is contrary to the law and deprives the parties the right to introduce evidence on questions of fact related to public need.
      3. The State of Michigan has made new commitments to integrate climate change into government decision-making.
      4. The duty to consider and/or determine the likely effects and alternatives under the Michigan Environmental Protection Act (MEPA) and its case law applies to the new tunnel and tunnel pipeline, and the intended purpose to extend the business and operations of Enbridge to the Straits and all of Line 5.
      5. MEPA requires an evaluation of feasible and prudent alternatives, including a “no action” alternative.

      Enbridge’s giant tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline 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 connects to Lake Huron.

      For more information, see:

      Election Results Have Profound Impact for Environmental Policy in U.S. and Michigan

      The result of the Presidential election, which has not yet been decided, will have enormous implications for U.S. environmental policy. Democrat Joe Biden, who won Michigan and currently leads the Electoral College count, has pledged to rejoin the Paris Climate Agreement “on day one of his presidency.” The former Vice President has put forward a “Plan for a Clean Energy Revolution and Environmental Justice.” Republican Donald Trump withdrew the United States from the international agreement, and has pushed policies that favor deregulation over environmental protection during his four years in the White House. According to The New York Times, the 45th President dismantled major climate policies and rolled back many rules governing clean air, water, wildlife and toxic chemicals.

      Here in Michigan, advancing an environmental agenda will continue to require bipartisan cooperation as Republicans in the State House of Representatives retained control in Tuesday’s elections. The results leave both chambers of the Legislature with a Republican majority, and making progress on environmental issues rests on cooperation between the Legislature and Democratic Governor Gretchen Whitmer.

      A shift in membership on the Michigan Supreme Court may have environmental implications. Elizabeth Welch, nominated by Democrats, edged out Mary Kelly, nominated by Republicans, to fill an open seat on the Court while Chief Justice Bridget Mary McCormack, nominated by Democrats, won a second eight-year term. The current Court membership recently struck down a law that Gov. Whitmer had used to deal with COVID-19 protections. The new Court membership may be involved in litigation involving the Line 5 pipeline.

      Michigan U.S. Senator Gary Peters, who has been a consistent advocate of Great Lakes protection and has a strong environmental voting record, won re-election to a second six-year term.

      A state ballot proposal lifting the cap on oil and gas revenues that can be deposited in the Michigan Natural Resources Trust Fund easily passed with 84% of the vote, a margin of over 3.3 million votes. The constitutionally protected Fund uses the revenues to purchase recreational and scenic land for public use. The ballot proposal also increases the share of the Fund that can be used for maintaining recreational facilities.