Traverse City, Mich. — FLOW is shocked that the collective efforts of thousands of Michiganders and treaty-protected tribes to protect our waters from the catastrophic risks of Line 5 have been ignored in today’s decision by the Michigan Public Service Commission (MPSC) to grant authorization for a Line 5 tunnel. The Straits are no safer while an unprecedented tunnel perpetuates the threat of an explosion spilling oil and gas into these ecologically fragile and economically vital waters.
In the same week that Governor Whitmer signed into law a nationally significant climate bill to decarbonize 100% of Michigan’s electricity production by 2040, today’s ruling is a black mark on the administration’s climate record and a disgrace to all of Michigan. A Line 5 tunnel with a 99-year lease will be an embarrassing albatross, hobbling future efforts to transition the region off fossil fuels and imprudently burdening taxpayers.
The Commission’s approval of a tunnel and 99-year new crude oil and natural gas liquids pipeline betrays its perpetual and solemn public trust responsibility as the sworn guardians of the public rights of citizens in the Great Lakes. This is not a “just transition” but a craven capitulation to fossil fuel profits.
Three years ago, FLOW intervened as a party before the MPSC in Enbridge’s proceeding seeking approval of a pipeline tunnel under the Straits. FLOW legal advisors Jim Olson and Skip Pruss have represented the public’s interest in the Great Lakes and Michigan’s priceless ecosystem. Enbridge has not received authorization from the Michigan Department of Environment, Great Lakes, and Energy to occupy state-owned bottomlands under the Great Lakes Submerged Lands Act, 324.32502-32508 and rules. Nor has the Department of Natural Resources made the required public trust findings to authorize a public-utility easement under Act 10, now MCL 324.2129. Without such authorization, Enbridge does not have a “legal warrant” to occupy state-owned bottomlands. See Obrecht v. Nat’l Gypsum Co., 361 Mich. 399, 416 (1960).
The authorization breaches the MPSC’s legal duty to prevent likely degradation of Michigan’s air, water, natural resources, and public health—including drinking water, fishing, sanitation, boating and recreation—under Michigan’s environmental protection laws and the mandates under article 4, section 52 of Michigan’s Constitution.
Michigan environmental law prohibits the Commission from authorizing a pipeline when, according to the recent PLG Consulting report, reasonable, practical, feasible, and prudent, and affordable alternatives exist, and environmental damage is likely. The Michigan Environmental Protection Act expressly states that under these circumstances, a permit or approval “shall not be authorized.”
FLOW Founder and veteran Michigan environmental lawyer Jim Olson said: “There is no justification, morally or legally, for a new crude oil pipeline and tunnel that will last into the days of our great-great-grandchildren. When they look back at us, what kind of ancestors will they see?”
This fight is not over, and FLOW will be there.
