Gov., AG, and DEQ can and should put an end to Enbridge’s stonewalling disclosure of information that points to closure of Line 5 in the Straits of Mackinac
Observations by some that the State of Michigan has no regulatory authority over hazardous liquid pipelines is correct to the extent that it is understood in the context of safety regulations — standards, inspection and enforcement; safety code enforcement is covered by the federal PHMSA law, regulation and agency. However, it is not true that Michigan does not have authority to demand the information Enbridge keeps under its control, and it is not true that Michigan does not have enforcement authority.
As concluded by the Michigan Petroleum Pipeline Task Force Report, 2015, Michigan has authority under the 1953 Easement, including the continuing obligation of Enbridge to conduct itself with prudence at all times, and it has authority under:
(1) its sovereign ownership of bottomlands and waters of the Great Lakes since statehood in 1837 under “equal footings” doctrine. Michigan took title in trust to protect the basic rights of citizens as beneficiaries of a public trust imposed on the state. This means the state has authority and duty to take actions to protect the public trust as a matter of its “property and public trust power,” whether or not it passes regulations on hazardous liquid pipelines or not. Under public trust authority and principles, the state cannot transfer or shift control over waters and bottomlands held in trust to any private person or corporation; the retention of information by Enbridge that is required to protect the public trust or to determine whether the public trust is threatened with high unacceptable harm or risk violates this public trust principle, and the Attorney General can demand and take all action necessary to compel Enbridge to turn it over, indeed, even the easement recognizes and is subject to this public trust.
(2) The Michigan Public Service Commission has authority over siting and locations of crude oil pipelines like Enbridge’s and others. Anytime Enbridge or some other corporation applies for a change or improvement to the structure it regulates as to siting, including its consideration of risks to property and health or environment and alternatives, the MPSC has authority to demand all relevant information needed to make a decision on the application for such change. Unfortunately, the MPSC has not insisted on the full range of information it could demand, including alternative pipeline routes and capacity to Line 5 in the Straits of Mackinac when it doubled capacity for Enbridge’s new replacement for the failed Line 6B that ruptured into the Kalamazoo River in 2010.
(3) Finally, the Michigan Environmental Protection Act, Part 17, NREPA, imposes a duty to prevent and minimize harm to air, water, and natural resources, and this includes the right to take action where necessary when a corporation’s actions are contrary to this duty to prevent and minimize harm; the MEPA, as it’s often called, is derived from Art 4, Sec. 52 of the Michigan Constitution.
So while Michigan ponders the aging or new pipeline infrastructure for hazardous liquids and crude oil, the state, including the Attorney General, have the authority to take immediate action to prevent the high risk of Line 5 or other pipelines. And, where that risk involves the devastating harm that undoubtedly may occur in the Straits, action should be taken immediately pending the coming one to two years of pondering. In short, there is no legal excuse or justification for Governor Snyder, Attorney General Bill Schuette, or the Department of Environmental Quality to put up with Enbridge’s self-serving stonewalling on disclosure of all information related to its Line 5 hazardous crude oil pipeline. And, there is no excuse or justification for our state leaders to delay action to eliminate the unacceptable harm from the Straits or other Michigan waters from Line 5.