Mackinac Bridge photo by Nancy May
By Liz Kirkwood and Nora Baty
Every hour, Enbridge’s Line 5 pipelines pump nearly a million gallons of oil through the heart of the Great Lakes at the Straits of Mackinac, which connect Lakes Michigan and Huron. This location with its powerful currents is “the worst possible place for an oil spill in the Great Lakes,” threatening over 700 miles of Lakes Michigan and Huron coastline, according to the University of Michigan. Governor Whitmer calls Line 5 “a ticking time bomb” that Enbridge has refused to defuse.
This morning along East Grand Traverse Bay, the drinking water source for Traverse City, Liz Kirkwood explains why Enbridge’s decision to ignore the law amounts to privatizing the Great Lakes and the Public Trust.
Sixty-eight years ago, Enbridge’s predecessor, Lakehead Pipeline Company, chose this vulnerable location as the shortest distance to transport Canadian oil back to Canada. In 1953, the public, political leaders, and pipeline operators had not yet experienced catastrophic oil spills like the Exxon Valdez in Alaska, BP Deepwater Horizon in the Gulf of Mexico, or Enbridge’s own Line 6B Kalamazoo River disaster in southern Michigan.
Now, despite the well-documented and lasting economic and ecological harm of oil pipeline disasters across the globe, we are witnessing intense, orchestrated opposition from Canada’s Enbridge and its allies to shutting down a clear-and-present danger to Michigan’s waters and way of life. A Line 5 oil spill would be an unprecedented ecological and economic disaster in the Great Lakes, threatening 84% of North America’s surface fresh water and some 20 percent of the planet’s fresh surface water, devastating coastal communities, and causing billions of dollars of damages to the environment and local and regional economy.
Enbridge has continually failed to adequately maintain the pipeline, committing repeated and ongoing legal violations that are both pervasive and well-documented. They include at least three known anchor strikes against the underwater pipelines, a vulnerable engineering structure never designed to withstand the powerful lakebed currents and erosion, a lack of adequate liability insurance to hold the state and its people harmless, 33 known Line 5 oil spills in Michigan and Wisconsin, and much more. Now, despite Governor Whitmer’s revocation and termination of the easement, Enbridge continues to operate Line 5 in violation of state law.
Line 5’s original design intended the dual pipelines to lie upon the lakebed and was subject to a detailed and comprehensive engineering evaluation of 20 specific areas, including written determinations of fitness that were certified by consulting engineers. Now, after decades of patchwork repairs to shore up the decaying infrastructure, as much as 3 miles of pipelines are elevated above the lakebed floor and prone to physical hazards such as anchor strikes in the busy shipping channel of the Straits of Mackinac.
After extensive legal review of Enbridge’s incurable violations in public trust waters, the governor and the Department of Natural Resources took decisive legal action to defend the Great Lakes from a catastrophic oil spill under the state’s sovereign public trust law. Leaders in 16 states and the District of Columbia and four tribes have taken Michigan’s side in its fight to have a state court, not a federal judge, decide whether the state has the authority to shutter Enbridge’s Line 5 oil pipeline in the Straits of Mackinac.
In refusing to shut down Line 5 per the Governor’s order, Enbridge’s flagrant disregard for the law exposes a deep-rooted and reckless corporate culture of exceptionalism that includes the following:
- Refusing to provide financial assurances for the consequences of a Line 5 spill.
- Refusing to hold the State of Michigan, its people, and the tribes of Michigan harmless, thus foisting risk of a Line 5 spill on the U.S. and the Great Lakes.
- Wielding political power to evade compliance with state rule of law.
- Conspiring with DTE and others to oppose electrification, renewable energy, and climate change mitigation measures.
- Engaging in a targeted, sophisticated misinformation media strategy through Enbridge’s front group affiliate Consumer Energy Alliance.
Gov. Whitmer on Tuesday pledged in a letter to seize any profits that Enbridge makes from operating Line 5 after today’s midnight shutdown deadline, alleging it would constitute trespass and unjust enrichment. Also on Tuesday, several federally recognized tribes in Michigan took legal steps under tribal law to limit Enbridge and the threat from Line 5. Bay Mills Indian Community in the Upper Peninsula, as well as a five-tribe organization including Bay Mills that manages the fishery in the Straits of Mackinac, voted to banish Enbridge’s Line 5 from its territory. Banishment is a legal action that is considered a punishment of last resort in tribal law.
“This was the first, necessary step in banishing Enbridge from these waters,” said Bay Mills chairperson Whitney Gravelle, who said the move applies to the reservation and treaty-ceded waters. “We’re calling on the state and the United States to enforce this banishment.”
Michiganders have not forgotten Enbridge’s epic failure and legacy of the million-gallon, Line 6B oil spill disaster into the Kalamazoo River in 2010 that drove dozens of families permanently from their homes and cost an estimated $1.2 billion in cleanup costs, damages, and restoration.
“The Enbridge Kalamazoo River spill of 2010 was a real thing — people remember it,” said David Holtz, spokesman for the Oil & Water Don’t Mix campaign. “They understand that oil still lies at the bottom of that river, and that a million gallons were spilled. They understand that could happen again times 10 in the Straits of Mackinac — no matter what Enbridge says in its million-dollar ad buys.”
After causing one of the largest inland oil spills in U.S. history, Enbridge rebuilt the Line 6B pipeline and gained approval to double its capacity. The economic and environmental costs of a Line 5 oil spill would be much worse to Michigan and the Great Lakes.
As part of “a sophisticated public affairs strategy,” Enbridge and its ally Consumer Energy Alliance—a national oil industry front group—continue to claim that shutting down Line 5 could lead to propane and oil shortages and increased prices harming Michigan consumers. However, the vast majority of the liquids shipped via Line 5 do not supply Michigan, and an independent analysis found that shutting down Line 5 was unlikely to significantly impact consumer prices at the pump (less than one cent per gallon) and that Michigan’s energy needs could be met without Line 5. Research conducted by former Dow Chemical engineer Gary Street found that in August 2020, after more than 50 days with at least one leg of Line 5 closed due to damage from an cable strike, gasoline prices and supply were unaffected in Michigan and Canada.
At the same time, the energy landscape is rapidly changing with the adoption of electric vehicles, accelerating commitments to cut greenhouse gas emissions, and the slowdown of oil and gas production. Enbridge has been on notice for several years that the State of Michigan was seriously considering the shut down of Line 5.
But not everyone is waiting around. In fact, several oil companies seeking alternatives to Line 5 have contingency plans put in place. Suncor Energy purchased a stake in the Portland-Montreal pipeline to import oil from Maine to Montreal if Line 5 is shut down. Toronto’s Pearson Airport has stated that its fuel sources are “diversified and consequently not at risk.”
Line 5 also threatens our climate and water security in an increasingly hot and thirsty world. Each year, Line 5 pumps out more than 57 million metric tons of greenhouse gas emissions, which is equivalent to the combined operation of the nation’s three largest coal plants. Dismissing the climate emergency, Enbridge and its political allies in the U.S. and Canada promote energy security alone and insist that “the operation of Line 5 is non-negotiable.”
This strident reaction from Canadian politicians stems in part from the fact that Canadians have rejected building any new pipelines in the last decade in their own country going east or west to the coasts for export. In this pipeline battle, the Anishinabek Nation says the Canadian government is putting the oil and gas industry ahead of the Great Lakes with its support for the Line 5 pipeline. The Great Lakes are international water bodies, and Canadians should be just as concerned for their protection as the United States.
The Great Lakes support over 1.3 million jobs that generate $82 billion in U.S. wages annually, with 350,000 of those jobs in Michigan alone. More than 48 million Americans and Canadians draw their drinking water from the Great Lakes. Line 5 represents an unacceptable risk to the jobs and economy of the Great Lakes region, drinking water, and tribal treaty and fishing rights. While Enbridge might refuse for now to stop Line 5’s oil flow or collaborate in the global energy transition, for the future prosperity of Michigan, the Great Lakes, and the planet, we all must transition away from Enbridge.
About the authors:
Liz Kirkwood is FLOW’s executive director. Nora Baty is a third-year law student at the University of Michigan Law School and currently serving as FLOW’s Milliken Law and Policy Intern.