Jim Olson is FLOW’s Founder & Senior Legal Advisor
Straits of Mackinac photo by Barbara Brown
By Jim Olson
In mid-November, Michigan Governor Gretchen Whitmer and Department of Natural Resources Director Dan Eichinger issued a Notice of Revocation of the easement for the crossing of Enbridge’s crude oil dual pipelines on the lakebed of the Straits of Mackinac. The twin pipelines are part of Line 5, which carries crude oil and natural gas liquids (including propane) from Canada through the U.S. and back into Canada for Ontario refineries or foreign exports.
Enbridge and the Canadian oil industry have now launched a media campaign to stir up fear in Ontario—and political pressure in Ottawa, Michigan, and Washington, D.C.—about the shutdown of the perilous Line 5 at the confluence of Lake Huron and Lake Michigan. The well-oiled media machine of Calgary, Enbridge’s headquarters and ground zero for the Canadian extraction of oil, has unleashed a barrage of stories that claim Michigan and the U.S. need Canadian oil, that thousands of jobs in Sarnia are in jeopardy, and that Sarnia and Ontario oil refineries already plan to implement an alternative by transporting crude oil by rail or ship it up the St Lawrence and on to Sarnia—a scare tactic on Ontario citizens.
Over the next week, FLOW will offer subsequent reality checks about Line 5.
Reality Check No. 1—The State of Michigan Has the Legal Duty and Authority to Revoke the Easement and Shut Down Line 5 in the Straits of Mackinac, which the Federal Government Cannot Preempt.
Michigan lawfully revoked the 1953 easement and operation of Line 5 on the bottomlands of the Straits of Mackinac to prevent the undeniable risk of unacceptable, devastating harm to Lake Huron and Lake Michigan. In response, Enbridge filed a lawsuit in federal court to block the State of Michigan order that requires a shutdown of the operation of Line 5 in the Straits of Mackinac by May 12, 2021. Enbridge then sent a letter to Governor Whitmer that refused to acknowledge and comply with the revocation, claiming Michigan did not have the legal authority to revoke the easement and the operation of Line 5 in the Straits of Mackinac. This is flatly wrong.
Like every state, when Michigan joined the Union in 1837, it took sovereign title to all of its navigable waters and lands beneath them. In the words of the U.S. Supreme Court, this title was “conferred upon Michigan by the federal constitution itself” and vested in the states “absolutely.” [PPL Montana v Montana, 565 U.S. 576 (2012)] The State holds this title under a solemn, perpetual public trust for the benefit of its citizens, who are the legal beneficiaries of this trust. The state government is the “sworn guardian” of these lands and waters, and has an affirmative duty to protect rights of citizens to navigation, fishing, drinking water, boating, and other water-dependent public needs from interference or harm. This public trust title and interests are perpetual and irrepealable and any easement or other agreement for use of Great Lakes bottomlands is revocable when necessary to prevent serious harm to the public trust and these protected uses.
Because Michigan revoked the easement and ordered the shutdown of Line 5 under the Straits and Great Lakes to prevent a catastrophic spill that all agree would be devastating and cause irreparably damage to these trust lands and waters, it is unlikely under any imaginable legal theory—Enbridge has tossed a slew of them on the courthouse wall—that a federal court will allow a private foreign corporation or Canada to override Michigan’s exercise of its core sovereign power to protect the rights of its citizens and these public trust lands and waters.
Under revered decisions of the U.S. Supreme Court, these core principles of state sovereignty are not and cannot be preempted by federal law or the federal constitution; there is only one exception to this rule, and that is where Congress acts to improve navigation or promote commerce or foreign affairs related to, or dependent on, navigation in or over these waters. Crude oil pipelines can be routed anywhere, and most certainly are not dependent on navigable waters like the Straits of Mackinac and the Great Lakes. Crude oil pipelines have nothing to do with navigation and shipping or the promotion of these navigational interests.
Reality Check No. 2—The MPSC Must Not Fail Again to Consider and Determine the Necessity, Impacts, and Alternatives to Line 5 in the Great Lakes.
Michigan approved the 1953 easement to Lakehead Pipe Line Company, now Enbridge, as an accommodation. It allowed the company to save money by taking the shortest route for a 30-inch pipeline to carry 300,000 barrels per day (bpd) of crude oil—at 42 U.S. gallons per barrel, that’s 12,600,000 U.S. gallons—from a pipeline hub in Superior, Wisconsin, across the Upper Peninsula of Michigan, along the bottom of the Straits of Mackinac, crossing part of the Lower Peninsula and then under the St. Clair River to Sarnia. As a result, the company did not have to build a pipeline down, around Chicago, and across southern Michigan to Sarnia. Enbridge expressly agreed that its easement and operation of Line 5 in the Straits were subject to the prudence of an ordinary person to prevent harm to public and private property—namely, the public trust in the Straits and property of riparian landowners and communities along Lake Huron and Lake Michigan. According to an expert analysis and modeling by the University of Michigan’s Water Center, up to 700 miles of shoreline and the upper one-third of Lake Huron and Lake Michigan would suffer devastating, irreparable harm in the event of a failure.
In 1969, Michigan’s Public Service Commission (MPSC) gave Lakehead (now Enbridge) permission to build a second 30-inch pipeline to carry 400,000 bpd of crude oil around Chicago and across southern Michigan to Sarnia. So, ironically, just 16 years after the push for Line 5’s shorter route through the Straits, Enbridge also operates Line 6b using the longer route and ended up with two pipelines.
Fast forward to 2010, and negligence by Enbridge led to Line 6b’s rupture and spill of more than one million gallons of heavy tar sands crude into the Kalamazoo River. Although Enbridge paid for years of cleanup, ultimately it appears that Enbridge was rewarded for its failure with permission to rebuild and supersize the failed pipeline. Enbridge maneuvered the MPSC to not only approve a new replacement 6b pipeline (now called 78), but to increase the diameter to 36 inches and double the design capacity to 800,000 bpd (33,600,000 U.S. gallons per day). That’s not all: During this same time period the MPSC approved Enbridge’s addition of anti-friction fluid devices to Line 5 to increase the flow of crude oil from 300,000 to 540,000 bpd, and 80 percent increase to about 23,000,000 U.S. gallons of oil per day.
In sum, the MPSC granted permission to Enbridge to nearly double the capacity for the flow of crude oil through Michigan and mostly back into Canada—from 700,000 bpd to 1,340,000 bpd or 56 million gallons a day. Despite the nearly 100 percent increase in crude oil transport, the MPSC never looked at what the right hand and left hand were doing. As a result, the MPSC failed to consider and determine the necessity, impacts, and alternatives to this doubling of capacity, as required by its public utility laws and the Michigan Environmental Protection Act (MEPA). Under MEPA, the MPSC must consider and determine the likely effects and alternatives of the proposed need or conduct. Had the MPSC done so, it would have realized that the nearly doubled design capacity in Line 6b would have handled most of the oil flow volume in Line 5; in fact, the MPSC could have looked at both its right and left hands, and addressed the dangers of Line 5 in the Straits, made evident by the Kalamazoo River disaster, by requiring Enbridge to size the new replacement line for 6b for all of Enbridge’s need.
Had Enbridge not manipulated the MPSC into segmenting the company’s planned near doubling of crude oil volume, Line 5 would be gone and Enbridge would be operating one new, replacement line 6b (78). The irony is that one of Enbridge’s executives in the 6b replacement case testified under oath that the enlarged 36-inch pipe or 400,000 bpd increase would meet Enbridge’s, and presumably Canadian refineries’, future crude oil needs.
Because the duty of the MPSC to consider need, impacts, and alternatives is a continuing duty under the MEPA, it can now correct this serious legal error and take into account the overall Enbridge projects that doubled capacity through its Michigan pipeline infrastructure as part of Enbridge’s pending application to approve a replacement tunnel for a new Line 5 pipeline under the Straits of Mackinac. According to its application and a lease-back agreement, this will allow Enbridge to operate Line 5 for another 99 years.
Reality Check No. 3—Alternatives Exist to Line 5 for Oil and Propane Supplies that Don’t Threaten the Economy and the Great Lakes.
Enbridge and Canada claim that Line 5 benefits the U.S. and Michigan and that Ontario jobs associated with the crude oil transported to Sarnia overshadow the inestimable value of the public trust, sovereign title, and life and livelihoods of states and Canadian provinces sharing Lake Huron and Lake Michigan. The numbers don’t add up. A sizeable spill into the Straits and the upper one-third of Lake Huron and Lake Michigan would threaten the 350,000 jobs in Michigan’s coastal communities that are directly tied to the Great Lakes and depend on the Great Lakes; a spill would jeopardize the 1.3 million jobs and $82 billion in wages tied to tourism, agriculture, fishing, shipping and related industries in the Great Lakes.
As Canadian expert Warren Maybee recently pointed out, “The oil is flowing into Canada. The U.S. doesn’t really gain any benefit… Most of it is just traveling through their country in order to feed into our system.”
The fact is that Line 5 is basically for the transport of Canadian oil through Michigan and back into Sarnia for Ontario, eastern Canada, and export to England. The few benefits of Michigan hardly outweigh the State’s duty to protect the public and Straits of Mackinac from billions of dollars and irreversible harm to their livelihood and quality of life. With the upper one-third of Lake Huron and portions of Georgian Bay in harm’s way, there would also be a substantial impact on Ontario’s environment, property owners, tourism, agriculture, and shipping jobs and economy.
As has been well documented, the 41-year-old Line 6b that ruptured in 2010 caused $1.2 billion in damages to the Kalamazoo River, one of the largest inland-waterway oil spills in U.S. history. The 68-year-old Line 5 dual pipelines in the Straits pose a clear danger of far greater damage. Strong currents eroded and scoured away soils under the dual pipelines, elevating long spans of pipe; the problem is so serious that 228 supports have been added since 2001, suspending up to 3 miles of pipes above the bottomland. An anchor strike dented or gouged the dual lines in 2018. Last summer, for at least the third time, an anchor or a heavy cable struck the pipelines and damaged their supporting structure. The next anchor strike could unmoor or break the long sections of pipe now suspended several feet in the water above the lakebed.
Studies conducted by a Michigan State University economic ecologist commission by FLOW have put estimated damages of a spill to natural resources, public and private property, and the tourist economy at over $6 billion, and shrink the nation’s Gross Domestic Product by $45 billion if a break or leak shuts down shipping and hampers steel making for just two weeks. Governor Whitmer and Director Eichinger, as trustees of these public trust waters and uses, had no choice but to exercise their inherent power and fulfill their mandatory duty to revoke the easement and dual lines in the Straits before catastrophe strikes.
Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and the economy, according to FLOW’s experts. In addition, just 1-2 propane rail cars or 4-5 tanker trucks a day could replace the aging Line 5 pipeline’s U.P. propane capacity without risking a Great Lakes oil spill, FLOW’s latest research shows. The rail cars or tanker trucks could deliver propane from Superior, Wisconsin, to the existing propane storage-and-distribution center in Rapid River, Michigan, north of Escanaba on U.S. 2.
A Line 5 shutdown could increase the cost of gasoline in metro Detroit by about 2 cents a gallon, according to a 2017 study commissioned by the former Snyder administration. Line 5’s temporary shutdown in 2020 due to damage had no impact on gas prices, according to independent research. Shutting down Line 5 would add just 5 cents to the cost of a gallon of propane, which has hovered around $2 for the past year, according to a 2018 study by London Economics International LLC, a Boston-based consultancy, and commissioned by the National Wildlife Federation.
Given that alternatives to Line 5 exist, including the increased capacity in Line 78, there is no reason why with a few adjustments in the overall pipeline system that jobs and economic concerns in Ontario or Michigan are really threatened. And, as noted above, the harm to jobs and the economy of a Line 5 spill in the Straits would far outweigh any benefit from continuing to operate the outdated infrastructure.
In short, when Line 5 shuts down, Detroit jets will still fly and union refinery jobs will still exist. Michigan and the U.S., and Ontario on Lake Huron, gain no real benefit and hold 100 percent of the risk of serious harm. It simply isn’t an “either or” analysis. If the harm to the public trust, livelihood, quality of life of the millions of people in Michigan and the Great Lakes Basin outweigh the fewer than 100 permanent Enbridge jobs from Line 5 in Michigan, or jobs in Canada, then the sovereign interests in these waters in the law are “paramount,” which any standard dictionary defines as “above all else.”
our precious environmental commodity is clean water-we’re talking about the health of humanity here. Anything disrupting this balance is a threat to the great lakes and the world’s clean water supply. The 100 jobs Enbridge could produce is chicken feed and incredibly minor compared to the danger it poses to the Great Lakes and clean water, a limited commodity!
This is an excellent manuscript of the facts and the law on the Line 5 issue. Governor Whitmer and AG Nessel are in for an expensive legal battle. Thanks for helping Michigan residents know what must happen.