For Love of Water (FLOW), a leading Great Lakes water protection organization, along with four Michigan Tribes and other environmental advocates, have filed an Application for Leave to Appeal with the Michigan Supreme Court, challenging a decision by the Michigan Public Service Commission (MPSC) and a subsequent ruling by the Court of Appeals regarding Enbridge Energy’s Line 5 pipeline tunnel project.
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The case, In re APPLICATION OF ENBRIDGE ENERGY TO REPLACE & RELOCATE LINE 5 (pdf), concerns the MPSC’s decision to permit Enbridge to construct and operate a proposed 4.1-mile tunnel housing a petroleum pipeline under and through the Great Lakes bottomlands in the Straits of Mackinac (MPSC Case No. U-20763).
The Significance of the Straits:
FLOW’s appeal emphasizes the profound significance of the Straits of Mackinac, a site of deep and enduring importance to the region. The Straits hold historical significance for Native American tribes who have inhabited the area for thousands of years, and are a vital economic, cultural, recreational, and ecological resource for Michiganders. The MPSC’s permitting decision, affirmed by the Court of Appeals, directly impacts each of these interests.
The Central Legal Question:
FLOW’s appeal centers on a critical legal question: Does the Michigan Public Service Commission (MPSC) have a duty to apply the public trust doctrine when making decisions about the Line 5 pipeline and its potential impact on the Great Lakes, even if the Michigan Legislature has not expressly empowered it to do so?
The public trust doctrine is a fundamental principle of environmental law, recognized by the Michigan Supreme Court for over a century. It establishes the state’s inalienable obligation to protect and preserve public rights of fishing, hunting, swimming, and navigation upon public trust lands and within public trust waters, including the Great Lakes and their bottomlands.
FLOW’s Argument:
FLOW argues that the Court of Appeals erred in concluding that the MPSC is a legislatively created entity without common law powers, and thus has no obligation or authority to apply the public trust doctrine. FLOW contends that this conclusion fundamentally misapprehends the nature of the public trust doctrine, which is rooted in state sovereignty and the long history of the common law, and ignores long-standing precedent. This decision stands in stark conflict with the Michigan Supreme Court’s Glass v. Goeckel decision affirming that “[t]he public trust doctrine is alive and well in Michigan.”
The decision undermines the state’s public trust duty and obligation to protect the people of Michigan and their invaluable public trust resources. The MPSC’s decision and the Court of Appeals ruling weaken Michigan’s ability to safeguard the Great Lakes.
“The Great Lakes are a public resource of incalculable value,” said FLOW Legal Director Carrie La Seur. “The MPSC has a fundamental responsibility to protect these waters, and its decision-making must be guided by the public trust doctrine. The Court of Appeals’ ruling dangerously undermines that responsibility.”
Significance of the Appeal:
This appeal to the Michigan Supreme Court is of paramount importance because it directly addresses the scope of the MPSC’s responsibility to protect the Great Lakes. The Supreme Court’s decision will determine whether the MPSC can make decisions that potentially endanger these waters without fully considering the state’s fundamental obligations under the public trust doctrine. A ruling in favor of FLOW would reaffirm existing precedent, ensuring that state agencies across Michigan prioritize the protection of the Great Lakes in all their decisions and empowering the public to hold these agencies accountable for safeguarding these vital resources.
“This case strikes at the core of our mission at For Love of Water. As sovereign, the state of Michigan (including all three branches of government) has a perpetual obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public, and the Straits of Mackinac connecting Lakes Michigan and Huron are at the very heart of this precious natural gift,” said FLOW Executive Director, Liz Kirkwood.
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For Love of Water (FLOW) is a nonpartisan 501(c)(3) nonprofit organization based in Traverse City, Michigan. Our mission is to ensure the waters of the Great Lakes Basin are healthy, public, and protected for all. With a staff of legal and policy experts, writers, and community builders, FLOW is a trusted resource for Great Lakes advocates. We help communities, businesses, agencies, and legislators make informed policy decisions and protect public trust rights to water. Learn more at www.forloveofwater.org.
I live in Connecticut so I’m nowhere near that disgusting Line 5 pipeline, but I’ve been following the story, and I’m enraged that it hasn’t been shut down long ago before it causes irreparable damage to our beautiful Great Lakes. The first time I learned about the Straits of Mackinac was when I saw the movie Somewhere in Time staring Jane Seymour and Christopher Reeve. I was in awe of the grandeur of the Straits of Mackinac, where Somewhere in Time was filmed. HOW DARE YOU PUT THIS BEAUTIFUL PLACE IN DANGER. You should contact Jane Seymour because she loves the Straits and would support the closing of Line 5 pipeline. She visits the Straits almost every year to commemorate the movie. CONTACT JANE SEYMOUR!!!!!
I live in Southern Wisconsin, but I’ve been fighting against this Line 5 project for years. The
dangers of allowing these Line 5 projects to continue is enormous. Breaks are almost
inevitable. Plus alternate routes for this oil to reach Canada exist. Please listen to reason.
Shut the Straits project down. Don’t continue to enable this disaster.
I have personally seen the damage that comes from an Enbridge oil spill. I live in Battle Creek, MI, near the site of the 2010 Enbridge oil spill. At the time, it was the largest inland oil spill in American history. The leak went on for hours. We still don’t know why the technicians didn’t notice the drop in pressure in the pipeline for hours! The tar sand oil leaked over miles and miles of streams and rivers, ruining them and killing wildlife. In Battle Creek, the Kalamazoo River runs directly through downtown. The entire area reeked of gas and oil for weeks. We can’t allow Enbridge to build yet another oil pipeline in our state. We are being used as a cut through for their Canadian oil. Line 5 runs the length of the UP, under the straits, through the northern lower peninsula and ends in Sarnia, Ontario, Canada. There have been many leaks along it. I know that once a leak occurs, nothing that leak touches will ever be the same again. We must stop this tunnel and shut down the current Line 5 that runs under the straits and is well past its expected lifetime. We must start transitioning to renewable energy. Our world depends on it. This is a disaster waiting to happen. Please think about this, especially near Earth Day! ❤️🌎