FLOW, Great Lakes Business Network, and Sierra Club File Joint Amici Brief in Nessel v. Enbridge Lawsuit, Dismantling Enbridge’s Allegations and Defending State Sovereignty
Contact: Carrie La Seur, FLOW Legal Director carrie@flowforwater.org (231) 944-1568
Traverse City, Mich. – On December 2, 2024, For Love of Water (FLOW), Great Lakes Business Network (GLBN), and Sierra Club filed an amici curiae brief opposing Enbridge’s motion for summary disposition in the Line 5 lawsuit Nessel v. Enbridge. The three groups, representing tens of thousands of Michigan residents and hundreds of Michigan businesses, weighed in as “friends of the court”, arguing that Michigan has both the power and the duty to protect publicly held bottomlands in the Straits of Mackinac from the urgent threat of a pipeline breach.
The amici brief makes the case that the 1977 Transit Pipelines Treaty between the US and Canada explicitly reserves for the states the authority to regulate cross-border pipelines in the area of environmental protection. AG Nessel’s complaint targets the failing underwater section of Line 5, wholly within Michigan’s sovereign territory. Pointing out how Enbridge has misread the treaty, lawyers for FLOW, GLBN, and Sierra Club outlined how the U.S. Supreme Court has long held that the Constitution protects traditional states’ rights and responsibilities – including the responsibility to protect public trust resources like the Great Lakes.
The Line 5 controversy indeed exposes a threat to the prudent conduct of our nation’s foreign policy – and that threat is Enbridge. Hiding behind the cloak of the foreign affairs doctrine, Enbridge seeks a judicial stamp of approval for a new U.S. foreign policy – one that would privilege a foreign oil company’s uninterruptible flow of hydrocarbons over the sovereign rights and responsibilities of the states.
FLOW Legal Director Carrie La Seur said, “With this week’s filing, our coalition again stands with AG Nessel to defend Michigan’s priceless natural heritage from an urgent threat.”
Andy Buchsbaum, the Great Lakes Business Network’s attorney stated, “Enbridge continues to try to stop Michigan’s top law enforcement officer from preventing a massive oil spill in the Great Lakes that would devastate millions of people and thousands of businesses. That’s shocking, and we can’t let it happen. Great Lakes businesses are standing up for the Great Lakes in court, before Congress and wherever else we need to be.”
FLOW, GLBN, and Sierra Club separately briefed the court in 2019 and 2021, arguing for Michigan’s sovereignty and public trust rights, and detailing irreparable harm that would befall the region’s economic security and quality of life if the judicial relief sought by AG Nessel – the revocation of the Line 5 easement and the shut down of Line 5 – is not granted before Line 5 ruptures.
“We appreciate Attorney General Nessel continuing to fight for protecting our Great Lakes and the people of Michigan from a pending oil spill disaster,” said Elayne Coleman, Sierra Club – Michigan Chapter Director. “Enbridge has thrown millions of dollars into their efforts to undermine Michigan’s right to oversee our public trust. We’re not going to bend to a Canadian oil giant, and we’re glad Attorney General Nessel isn’t backing down, either.”
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
The Great Lakes Business Network is a coalition of businesses dedicated to preserving the integrity and vitality of the Great Lakes, fostering sustainable business practices, and advocating for policies that protect the environment and the economy of the Great Lakes region. It is co-managed by National Wildlife Federation and Groundwork for Resilient Communities. Learn more at glbusinessnetwork.com
Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 3.5 million members and supporters. In addition to protecting every person’s right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action. For more information, visit www.sierraclub.org.
FLOW (For Love of Water) applauds the federal Sixth Circuit Court of Appeals’ decision yesterday sending Michigan Attorney General Dana Nessel’s legal action against Enbridge’s Line 5 back to state court where it started. In 2019, AG Nessel sought a court order to shut down Enbridge’s failing Line 5 crude oil and natural gas pipeline. In 2020, Governor Whitmer revoked Enbridge’s easement. As a result, Line 5 now illegally occupies the Lake Michigan lakebed at the Straits of Mackinac, and presents a clear and present danger of a catastrophic spill into the Great Lakes.
Now the Sixth Circuit has held that Enbridge’s removal of AG Nessel’s lawsuit to federal court, more than two years after it was filed, was untimely and unjustified. Enbridge’s attempt to take the lawsuit to federal court came well after the deadline for removal, and the Sixth Circuit ruled that the delay could not be justified on any of the grounds cited by Enbridge or the lower court. Enbridge’s delay tactic of removal is typical of fossil fuel companies being held to account by state authorities, and it failed here.
FLOW has vigorously supported AG Nessel throughout this procedural odyssey, including submitting an amicus curiae (friend of the court) brief to the Sixth Circuit. FLOW is confident that at a trial on the merits, the AG will demonstrate the monstrous and unacceptable threat the 70-year-old Line 5 poses to the precious clean water resources of the Great Lakes, and achieve the shutdown remedy she and Governor Whitmer have so vigilantly pursued. FLOW and its many supporters and allies remain committed to this goal, and we are grateful for the leadership of AG Nessel and Gov. Whitmer in this fight.
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FLOW is an independent, 501(c)(3) nonprofit that serves as a Great Lakes water law and policy center dedicated to ensuring the waters of the Great Lakes Basin are healthy, public, and protected for all. The enduring idea of the commons and legal principles of the public trust offer unifying adaptive solutions to address basin-wide threats. FLOW’s staff of legal and policy experts, journalists, and community-builders makes FLOW an authoritative resource for Great Lakes advocates. FLOW builds a knowledge base for communities, state agencies, and legislators to inform policy and advocacy for water issues.
Michigan A.G. Dana Nessel’s team to make arguments in historic public trust case to end threat of Great Lakes oil spill
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
Streaming live online this Friday morning, Michigan Attorney General Dana Nessel or members of her staff—attorneys Peter Manning, Bob Reichel, and Dan Bock, steeped in water and natural resources law—will make historic arguments to bring Line 5 in the Straits of Mackinac under the rule of law and lead to its orderly closure. Nessel’s action was taken to protect the public trust of all of Michigan’s citizens, now and in the future, in Attorney General Dana Nessel On Behalf of the People of Michigan v. Enbridge Energy, Limited Partnership, et al., before Ingham County Circuit Court Judge James S. Jamo.
Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST
The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.
After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.
Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.
Growing Pile of Evidence against Line 5
The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.
As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.
Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years
The attorney general’s action is truly historic. Why?
It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.
Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.
Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:
The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)
The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:
No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.
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No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).
The Public Trust Imposes a High, Solemn Duty on the Government
Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)
So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply. In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.
Courtroom Context on May 22
Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.
The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.
A Powerful Mix of Duty, Integrity, Courage on Display
We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.
It’s getting warm this spring down in Allegan County. In late February 2024, attorneys in the Michigan Attorney General’s office brought an enforcement lawsuit against J&D Brenner Farms, an Allegan County dairy operation and successful scofflaw until this year. EGLE has been trying since 2016 to get Deb Brenner to apply for a wastewater discharge permit for her livestock confinement. An eight year grace period seems pretty generous, but all good things must end.
Brenner, who doesn’t seem to have incorporated but calls the place J&D Brenner Farms, keeps an estimated 650 dairy cows. Michigan’s regulations for Confined Animal Feeding Operations (usually referred to as CAFOs) distinguish between “Large CAFOs” – for dairy operations, stabling or confining more than 700 mature dairy cows – and “Medium CAFOs” – 200 to 699 mature dairy cows. Different regulations apply, unless you just don’t bother to file a permit application at all. Then you get a series of increasingly firm letters from EGLE, followed by – wait for it – an unpleasant one from the Attorney General.
The problem is, of course, that those 650 Brenner cows produce 6-9 million gallons of waste annually. It’s not just manure (although it’s a lot of manure, equivalent to 1% of the sewage produced each day by metro Detroit), it’s also every other kind of waste that a dairy operation produces. Under the permit definition, “manure” means what you think it means, plus anything someone throws in with it for disposal. This might include growth hormones, antibiotics, milkhouse cleaning chemicals, chemicals added to manure storage lagoons, birthing fluids and blood from calving, silage leachate, contaminated storm and wash water, copper sulfate used to keep cows’ hooves healthy, even diesel fuel tossed in to keep down bugs and algae. A fairly toxic stew.
All this muck has to go somewhere. Anyone who’s explored the upper Midwest in spring knows where. The big dump of CAFO waste is already underway this year, pouring vast amounts onto fields as an inexpensive fertilizer. The law requires careful measurement of how much fertilizer a given field needs, but unlike commercial fertilizer, which is more expensive all the time, CAFO waste has to be disposed of to free up space in lagoons for more of the same. Up to a point, it’s fertilizer. But all too often, it’s waste disposal, and the more the better.
To understand how Brenner got away with ignoring the law for so long, let’s look at another central Michigan large livestock operation in nearby Ionia County. Van Elst Brothers CAFO in Lake Odessa reports 4,995 hogs, qualifying it as a Large CAFO. They produce 2 million gallons of liquid waste a year. They don’t have a discharge permit either, but that doesn’t matter, because the Van Elsts have a quasi-magical status called a No Potential to Discharge Determination.
There are three basic requirements for No Potential to Discharge for a Large CAFO:
The CAFO can’t have any reported discharges of CAFO waste to surface waters in the last five years, from the confinement site or the application fields. As a side note, this isn’t great motivation for self-reporting of spills that require emergency response.
It must be “verified” as observing best practices under the Michigan agriculture environmental assurance program – a black box verification by the state ag agency, without public disclosure or any renewal process, so that once you’re in, you’re in forever.
In practice, EGLE only grants No Potential to Discharge status to Large CAFOs that “manifest” all their waste, meaning that they “sell, give away, or otherwise transfer” it to a third party (sometimes very closely connected, but legally separate) for field application. This way, the CAFO operators can figuratively (and, we hope, literally) wash their hands of their waste.
Which brings us to the fascinating topic of Manifested Manure. Technically, Large CAFO operators are supposed to have the person who trucks away their waste fill out a 4-page form promising that they’ll be pious and law-abiding after driving away with a load of CAFO waste no one will ever follow up on. It’s the ultimate honor system.
The CAFO operator keeps the form, like a medieval Roman Catholic dispensation absolving them of any guilt for eventual water pollution, and the waste hauler makes the problem go away. The location of the “manifested” fields never makes it into EGLE’s database. The hauler has no reporting obligations. No inspector will call. Imagine if nuclear waste was handled this way. We’d all glow in the dark.
If only Deb Brenner had taken EGLE’s suggestion, back in August 2016, to apply for a No Potential to Discharge request by October 1, 2016, all this embarrassment could have been avoided. If she’d simply transferred all her CAFO waste to, for example, Brenner Excavating up the road for disposal, and cleaned up the site enough to pass an inspection, she’d be sitting pretty today rather than hiring lawyers. The Van Elst Fact Sheet and Basis for Decision Memo is a thin 3-pager, not a high bar at all. And we haven’t begun to talk about the many permitted CAFOs with long rap sheets of violations that seem to pass under the enforcement radar.
Let’s be clear: FLOW applauds the AG or EGLE for undertaking a well justified enforcement action. We’re proud that Michigan is doing better than its neighbors at controlling CAFO pollution. But when Michigan still estimates that roughly half its surface waters are contaminated by E. coli bacteria, fish kills from CAFO waste are a regular occurrence, and many fish are unsafe to eat, the public deserves better than regulatory loopholes big enough for a fleet of manure spreaders to parade through.
Traverse City, Mich.— Today, March 21, the U.S. Court of Appeals for the Sixth Circuit heard oral arguments in Michigan Attorney General Nessel v. Enbridge, the 2019 lawsuit seeking to shut down Line 5 in the open waters of the Straits of Mackinac. Michigan Attorney General Nessel maintains that this case belongs in state court based on the state of Michigan’s sovereign responsibility to protect the public trust in the waters of the Great Lakes.
Both before and after Nessel’s suit, the Straits pipelines have been repeatedly struck by anchors or cables dragged by passing vessels, and two anchors have been found lying on the lakebed near the pipelines. “The threat of rupturing the aging pipeline and causing a catastrophic oil spill in the Great Lakes is a clear and ever-present danger,” stated FLOW Executive Director Liz Kirkwood. “The largest fresh surface water system in the world is at great risk.”
The Attorney General filed her lawsuit in Michigan state court in 2019 to force shutdown of Line 5. Since then, Enbridge, following Big Oil’s playbook of delay, has thrown up numerous procedural roadblocks to try to derail the lawsuit, including removal of the case to federal court. The Attorney General challenged that removal on the grounds that Enbridge’s tactic came way too late, and the federal courts lacked jurisdiction over the state law-based claims in the complaint originally filed in state court.
In 2023, the federal district court sitting in Grand Rapids sided with Enbridge, and the Attorney General appealed. Today, Assistant Attorney General Dan Bock argued to the Sixth Circuit that by waiting more than two years to remove the case to federal court, Enbridge’s removal was untimely and must be rejected. Mr. Bock also argued that, timing issues aside, the federal court misapplied the law when it ruled that the case belongs in federal court rather than state court. The Attorney General argued that yanking the case out of state court simply because Enbridge prefers a federal forum violates the State’s right to have state claims resolved in state court.
Enbridge’s attorney Alice Loughran argued that the removal to federal court was timely, and should remain in federal court because federal issues dominate the case. Those issues include the effect of the 1977 U.S. – Canada transnational pipelines treaty, the federal Submerged Lands Act, and the extensive federal regulation of oil pipelines. Enbridge essentially argued that Michigan’s sovereign rights and responsibility to protect the clean waters of the Great Lakes from another Enbridge oil pipeline disaster are not enforceable in state court and must yield to the need for continuous crude oil delivery through Line 5. In short, the protection of commerce and Enbridge’s Line 5 profits (roughly $2 million per day) are federal issues that must take precedence.
The arguments were presented to a three-judge panel of the Sixth Circuit Court of Appeal: Judges Griffin, Thapar and Nalbandian. The questioning by the judges reflected deep skepticism of Enbridge’s argument that the district court was correct when it excused the company from compliance with the time requirements for removal of the case from state court to federal court. On the question of jurisdiction, the judges seemed divided on whether the federal Submerged Lands Act or the pipelines treaty with Canada provide a sufficient basis for the exercise of federal court jurisdiction. At the conclusion of the arguments the case was taken under advisement. While no timeline was given, we expect the court to issue its ruling this spring.
FLOW filed an amicus curiae (friend of the court) brief in support of the Attorney General. In its brief, FLOW argued that removal of the case to federal court upset the traditional balance of responsibilities between the federal and state judiciaries. In particular, an affirmance of removal would deprive the State of Michigan and the Attorney General of well-established rights under Michigan law and U.S. Supreme Court precedent to assert the public trust doctrine to prevent the use of state-owned Lake Michigan bottomlands for private, commercial gain. FLOW also argued that Enbridge’s reliance upon the so-called “foreign affairs doctrine” to shield it from state remedies for violation of the public trust, nuisance law, and enforcement of the Michigan Environmental Protection Act is a gross distortion of federal-state relations under our federal system of government guaranteed by the U.S. Constitution. Mr. Bock acknowledged FLOW’s arguments during his presentation to the court.
FLOW strongly supports Attorney Nessel’s effort to return this case to state court and proceed to a trial on the merits of her claim that Line 5 is unreasonably dangerous, and that the threat of an enormous environmental disaster must be terminated without further delay.
Traverse City, Mich.—Today, September 25, 2023, FLOW (For Love of Water) filed a motion with the Sixth Circuit Court of Appeals in the 2019 state lawsuit Attorney General Dana Nessel v. Enbridge, requesting the federal appeals court to accept an amicus brief that articulates why this case should be remanded back to state court where it belongs.
Built in 1953, Line 5 is a 70-year-old oil pipeline operating in fierce currents on the bottomlands of the Straits of Mackinac, where Lake Michigan and Lake Huron meet. The underwater pipeline has been repeatedly struck by ship’s anchors, and cables dragged by passing vessels have damaged the pipeline and its supports. Line 5 is uniquely vulnerable to multiple impacts that could result in irreversible environmental harm and billions of dollars of damage to the Great Lakes regional economy.
Three years after the Attorney General filed the 2019 state lawsuit, Enbridge in a procedural tactic removed the case to the federal district court in Grand Rapids, Michigan. The federal district court refused to remand the case back to state court. The Sixth Circuit Court of Appeals accepted Attorney General Nessel’s request to appeal the district court’s ruling in July, and has directed the Attorney General and Enbridge to submit legal arguments on whether to remand the case back to state court in Michigan.
The waters and bottomlands are sovereign public trust resources held by the State of Michigan in trust for the benefit of the citizens of Michigan and the Great Lakes region. Long-standing legal principles that balance federal and state interests weigh in favor states’ rights and jurisdiction over public navigable waters and bottomlands.
As an advocacy organization committed to protection of the precious state sovereign water resources, FLOW has requested permission to file a “friend of the court” brief, technically called an amicus brief, to provide the Sixth Circuit Court of Appeals our unique perspective regarding its knowledge and experience of Michigan and Great Lakes states’ sovereign ownership of public lands and water resources under the public trust doctrine. State courts are the sworn guardians with a responsibility to protect the public’s rights in and uses of navigable waters and submerged lands throughout the Great Lakes region. Our shared waters are a public trust, and it is the duty of our state governments to act as stewards of this trust, ensuring that the interests of current and future generations are safeguarded.
But for the State of Michigan’s conditional authorization under public trust law, Line 5 could not have been built on the bottomlands of Lake Michigan in the Straits of Mackinac. When the state granted an easement to Enbridge’s predecessor 70 years ago, it was subject to the perpetual duty and right of the state to assure the public trust in the Great Lakes is never impaired. The easement was never properly authorized, and in any event, is subject to revocation and termination when the public trust waters and natural resources are threatened with risks of devastating harm. In the absence of that authorization and in the face of this extraordinary risk, Line 5 can not continue to operate.
The Great Lakes Business Network (GLBN) alongside 60 Tribes and First Nations have filed two additional amici briefs supporting the Attorney General’s request to remand the Line 5 public trust case back to state court.
Photo: Jim Olson, FLOW’s Founder and Legal Advisor, makes arguments in a Sept. 30, 2020, court hearing conducted online. The hearing considered motions made by Enbridge regarding the proper scope of the Michigan Public Service Commission’s review of the proposed Line 5 oil tunnel.
There was good news and bad news in a state administrative law judge’s October 23 ruling that addressed legal arguments over what the Michigan Public Service Commission (MPSC) can and cannot evaluate when deciding whether to permit the siting of Enbridge’s proposed oil pipeline tunnel project under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
First, the good news: Judge Dennis Mack rejected Enbridge’s attempt to escape accountability by restricting the MPSC’s review to the impacts associated with the mere installation of a new Line 5 oil pipeline into the tunnel after it is built. The MPSC must consider the impacts from construction to nearby surface waters, wetlands, and the overall safety of the location and construction of both the pipeline and the tunnel that would house it.
Now, the bad news: The judge granted the Canadian energy pipeline giant’s bid to exclude evidence from the MPSC’s review that the oil pipeline tunnel would worsen the climate crisis and cause other environmental harm. The judge also excluded from the MPSC’s consideration of the public necessity to transport up to 8 billion gallons of oil a year for 99 more years in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy.
Absent a successful appeal by FLOW or other intervening parties in the case to the three-member MPSC to overturn the ruling, as Julius Caesar said when he crossed the Rubicon, Alea iacta est—the die is cast.
Clockwise from top-left: Dennis Mack (Administrative Law Judge); Spencer Sattler representing MPSC staff; Assistant Attorney General Robert Reichel representing the Michigan Department of the Attorney General; Chris Bzdok, representing Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians; Christopher Clark representing Bay Mills Indian Community; Margrethe Kearney, ELPC attorney representing the Environmental Law & Policy Center and Michigan Climate Action Network.
September Court-Zoom Drama
Judge Mack’s ruling on the scope of evidence the MPSC can consider followed sharply divided legal arguments on September 23 in a Zoom call from lawyers for Enbridge, the Michigan Public Service Commission, the Michigan Department of Attorney General, Native American tribes, FLOW, and several other public interest organizations. The judge heard a wide range of legal arguments over the scope of the MPSC’s review of impacts, necessity, and alternatives to Enbridge’s proposed utility tunnel and tunnel pipeline. The tunnel would extend the life of Line 5 and facilitate the transport of as much in total as 800 billion gallons of crude oil through Michigan and under the bottomlands and waters of the Straits of Mackinac for almost another century. Nothing less than the authority of the MPSC to protect the people of Michigan, the environment, the climate, and the future public interest of the citizens of Michigan is at stake, according to arguments made orally and also filed by FLOW and others.
Lawyers for Enbridge, in court and in their filing, pushed to strip the MPSC of its authority to review anything but a simple replacement of old plumbing with new plumbing for Line 5 in the Straits. In short, Enbridge argued that the MPSC could not evaluate any impacts from the massive tunnel, the need for the tunnel in a rapidly declining market for crude oil, or the billions of dollars in damage and cost from rising Great Lakes water levels, flooding, and collapsing of infrastructure in Michigan tied directly to the burning of fossil fuels and climate change. Rather, lawyers for Enbridge argued the MPSC could look at only the physical impacts of removing old dual pipelines and replacing them with a new pipeline put in a new tunnel in the bedrock and mixture of rock and soil under the lakebed.
In contrast, the lawyers for intervening parties in the case—including on behalf of Michigan Attorney General Dana Nessel, Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, FLOW, Environmental Law and Policy Center, Michigan Climate Action Network, Michigan Environmental Council, National Wildlife Federation, Tip of the Mitt Watershed Council—argued for a broader scope of review concomitant with the magnitude of the proposed 99-year $500 million+ tunnel and new pipeline. They argued that the tunnel and pipeline are inseparable, and that it is a single project that would commit the state of Michigan to the environmental and public health impacts of the transport of up to 8 billion barrels of crude oil a year, carried from Canada under the Straits of Mackinac and back into Canada to Sarnia’s Chemical Valley cluster of refineries and chemical plants.
Public Need, Public Interest, Public Trust, and a Private Tunnel
Lawyers challenging Enbridge pointed out that Act 16, the law that defines the MPSC’s scope of review, imposes three standards and findings before a utility project like this can be legally approved: (1) the demonstration of need to realize a true public need; (2) safety and consistency with the public interest; and (3) the project is a reasonable alternative. Lawyers for FLOW and the other groups and tribes also pointed out that the MPSC has a duty under the Michigan Environmental Protection Act (MEPA) to prevent and minimize likely impairment to the air, water, and natural resources, and the public trust in those resources, and to find there is no feasible and prudent alternative to the project.
The question of a public need for the project faces the reality of rapidly falling demand for oil and a sea change in investment toward renewable energy and a conservation economy. There are alternatives to continuing to risk the Great Lakes and our water-based economy, including the obvious use of excess capacity in Enbridge’s greatly expanded oil pipeline across southern Michigan to Sarnia that replaced the corporation’s aged line that ruptured and caused the devastating 2010 Kalamazoo River oil spill disaster. Lawyers for the tribes made clear that the environmental impacts of the proposed oil tunnel pose serious threats to tribal fishing and sovereignty over their treaty waters. Feasible and prudent alternatives clearly exist that are more consistent with the public interest of the citizens of Michigan, and the Michigan Supreme Court has made it abundantly clear that the state has a duty to comprehensively consider the likely effects and range of alternatives in deciding the necessity of a project like the century-spanning tunnel and pipeline. [Highway Comm’n v Vanderkloot, 392 Mich 159 (1974)]
The public interest in this proceeding includes our environment, protected by the MEPA, but it is also defined by what the public trust in the air, water, and environment of our Great Lakes—an ancient, irrevocable legal principle that protects the overarching rights of the public to enjoy the Great Lakes for navigation, fishing, drinking water, sustenance, boating, and swimming. [Obrecht v National Gypsum Co., 361 Mich 399 (1960); Illinois Central R Rd v Illinois, 146 U.S. 387 (1892)] This public trust imposes an affirmative and perpetual duty on governmental agencies, like the MPSC, to protect these legal-beneficiary rights of citizens.
Enbridge’s Narrow View of Public Oversight
Enbridge tried unsuccessfully to avoid or narrow the MPSC’s review of the crude oil tunnel project last April, when it asked the MPSC to rule that the tunnel proposed today was covered by its ruling existing 67 years ago on the existing Line 5 pipelines in the Straits. Agreeing with FLOW and others, the MPSC rejected the attempt, and issued an order on June 30, as FLOW chronicled, that concluded, “the Commission finds that the Enbridge’s Line 5 Project involves significant factual and policy questions and complex legal determinations that can only be resolved with the benefit of discovery, comprehensive testimony and evidence, and a well-developed record.” [MPSC Order, June 30, 2020, Case No. U-20763]
The October 23 ruling by Administrative Law Judge Mack rejected Enbridge’s argument that the authority of the MPSC was restricted to replacing the old dual lines with a new single line in a tunnel. The judge ruled definitively, as argued by the organizations and tribes, that the tunnel is inseparable from the pipeline, and the impacts and operation of both must be considered. On the other hand, the judge interpreted more narrowly the MPSC’s June 30 order that signaled a desire for a “well-developed record” on all of the complex issues involved in the oil pipeline tunnel project. The judge’s decision rejected arguments by the Attorney General, organizations, and tribes that the MPSC must undertake a comprehensive evaluation of the need, safety, impacts, and alternatives, including the inherent commitment by the state to permit the transport of nearly a trillion gallons of oil over the next 99 years, the lack of need for this oil, and the devastating effects of climate change.
Context is King: Construction Project or Climate Change Nightmare?
All of the parties in the case will be evaluating the effect of the judge’s decision to allow consideration of the impacts of the tunnel and pipeline construction, but exclude consideration of overall necessity, impacts, and alternatives of the century-spanning tunnel and pipeline project. Any party has a right to request a full review and decision by the three members of the MPSC itself. The parties, conversely, could choose to proceed in a hearing set for February 12, 2021, with testimony and evidence limited by the judge to just the impacts of building the tunnel and moving the pipeline. If the latter course is taken, then indeed Michigan will have crossed the Rubicon on the climate crisis and protecting the Great Lakes and ourselves from the worst of it.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
FLOW Founder and Legal Advisor
Last week the Michigan Attorney General’s Office chose not to appeal a lower court ruling upholding the constitutionality of a law that facilitates the framework for an oil tunnel under the Straits of Mackinac—forgoing any further challenge, but, in reality, yielding no strategic legal ground.
Don’t get me wrong. The constitutionality of the Act 359 “tunnel law” under the so-called “Title-Object” clause of article 4, section 24 of Michigan’s Constitution always has been an important question. This clause requires the purpose of a bill be stated in its title. Clearly, the legislature had no business stating the tunnel project was a public project like the Mackinac Bridge, then passing a law that allows a company to build, operate, and control its own private tunnel pipeline.
But the tunnel law only sets up a framework for a tunnel and new pipeline in the Straits. By forgoing any further appeal of the “Title-Object” question, the spotlight turns on the more central question at hand:
Can Canada’s Enbridge obtain the required authorizations under the rule of law, for its private gain and control, for a massive tunnel and tunnel pipeline beneath the public trust bottomlands of the Great Lakes?
The lame-duck legislature’s tunnel law and agreements signed by the Snyder Administration in its last days in 2018 sought to tie the hands of the newly elected Governor Gretchen Whitmer and Attorney General Dana Nessel, who took their oaths of office on January 1, 2019. But the 11th-hour maneuvers failed to bind the new leaders. Why? Because Act 359—the tunnel law—and the related tunnel agreements compel Enbridge to obtain the required approvals and permits for the location and construction of the tunnel and tunnel pipeline under all applicable federal and state laws. In other words, constitutional or not, the law simply begs the question.
The tunnel is not a done deal. Under the law, Enbridge is required to obtain a long list of governmental approvals and permits. Notably, it needs authorization under Michigan’s Great Lakes Submerged Lands Act (GLSLA) for easements and leases for location of the tunnel, a construction permit, and authorization to locate the pipeline in the tunnel as a “public utility” under the public trust bottomlands of the Great Lakes.
Moreover, Enbridge can’t even apply for location of the tunnel pipeline until it obtains certification of the new line as a “public utility” from the Michigan Public Service Commission (MPSC). Thus, in addition to the required authorizations under the GLSLA, Enbridge also must prove and the MPSC must make findings that the tunnel is “necessary” and “in the public trust interest” in the uncertain and tumultuous world of 2020—declining crude oil markets, climate change, and rapid transition to a renewable economy that just may make life livable for our children and grandchildren in this century.
Not only are these findings required, but the MPSC also must find that there are no “likely environmental impacts” and that there are “no feasible and prudent alternatives” to the new tunnel—when there are thousands of miles of crude oil pipelines owned by Enbridge and its competitors crisscrossing North America in every direction. Enbridge’s super-sized replacement of the ruptured Line 6B pipeline that despoiled the Kalamazoo River in 2010 has enough unused design capacity to nearly equal the average amount of crude oil pumped through Line 5 every day. The proposed oil tunnel is not necessary, clearly not in the public interest at this time in history, and there are alternatives that are both feasible and prudent.
After the tunnel law passed, Enbridge received an assignment of an easement and a 99-year lease-back from the Michigan Department Natural Resources (DNR) to locate, use, and operate the proposed tunnel and tunnel pipeline under the bottomlands of the Great Lakes. But Governor Snyder, the DNR, and Enbridge have not applied for authorization of this conveyance and lease under public trust law and the GLSLA. And, the tunnel and tunnel pipeline have not been certified by the MPSC. Nor has the project been authorized by the United States Army Corps of Engineers.
So, it is not surprising the constitutionality of the tunnel law aside, the central effort at this point must seek a prompt shutdown of the imminently dangerous conditions surrounding the existing dual pipelines in the Straits of Mackinac. And, as for the tunnel, the spotlight must determine whether the massive tunnel project should or can ever be approved under the rule of law of Michigan—the laws that protect the constitutional and public trust interests of our quality of life.
It’s time to navigate what we face in the 21st century, rather than remain stuck in the irons of the 20th century, when the 67-year-old Line 5 was installed in the open waters of the Great Lakes.
Line 5 Must Be Closed Before Disaster Strikes
The 67-year-old dual Line 5 pipelines continue to operate in the Straits of Mackinac, threatening the Great Lakes with a massive oil spill from a leak or rupture in the worst possible place in the country. Hazards include strong currents, underestimated for the “as built” pipes, anchor strikes, and, now, we learn, anchor lines that dragged along the pipes, and tore out a saddle support, installed because the strong currents were scouring and undermining the original as built dual pipelines.
Attorney General Dana Nessel filed suit (Nessel v Enbridge) against Enbridge in Ingham County Circuit Court to decommission Line 5 in an orderly fashion to prevent well over $6 billion in damages and irreparable long-term harm should a spill occur. The existing Line 5 dual lines and this lawsuit must proceed. It is not, and should not be, tied to the proposed tunnel; these dual lines need to be closed down before an inevitable accident or rupture happens. Circuit Judge James Jamo has stopped use of the east leg of Line 5, and is considering the revocation of a 1953 easement that was given conditionally to Enbridge, but without any understanding of the conditions that exist in 2020.
By Peggy Case, President, Michigan Citizens for Water Conservation
Rarely does a ruling by a state Administrative Law Judge overturn a permit issued by a state agency. In the contested case hearing on the Nestlé permit to withdraw more than 500,000 gallons of water per day from a White Pine Springs well near Evart, Michigan Citizens for Water Conservation (MCWC) and the Grand Traverse Band of Ottawa and Chippewa Indians (GTB) had hoped the administrative law judge would reverse the former Snyder administration’s unwarranted permission for Nestlé’s permit.
But on April 24, the administrative law judge in the case before the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a proposal for decision that would uphold the permit, and recommended that Liesl Clark, Director of EGLE, render a final decision in Nestlé’s favor. Fortunately, the decision is only a proposal, and our attorneys have advised us that MCWC and the Grand Traverse Band have a right to file exceptions.So we are urging Director Clark and the Whitmer Administration to reject the footloose interpretation of Michigan’s water laws for Nestlé to sell another 210 million gallons of bottled water per year from the headwaters of our lakes and streams.
The proposal from the judge is full of errors and interpretations and relies on a model based on assumptions, not actual calculations of the effects, that tipped the cup toward Nestlé. We intend to demonstrate these errors through the filing of exceptions as provided by law. We trust Director Clark and the administration will reject the permit, and follow the legal duty resting with EGLE to apply our water law standards strictly, the way they were intended.
This proceeding and case started with the Snyder Administration’s Department of Environmental Quality when it granted the permit in April 2018, despite compelling legal arguments and massive public opposition. Today, we have new leadership and a new Director at the helm of EGLE.
The Governor and Attorney General campaigned on a promise to change the way we do business in Michigan when it comes to protecting water resources and promoting water justice. Unfortunately, to date, the administration through EGLE and the Attorney General’s office has continued to defend the Nestlé permit and filed a brief asking to throw out our contested case and grant the permit. This is difficult to comprehend when we consider that in the spring of 2017, 600 people opposed to the permit drove or took buses from all over the state to attend the hearing. Citizens submitted more than 80,000 comments opposing that permit in the first place.
We know this Administration can do better in support of the voters, the water, and the damaged ecosystem in Osceola Township. It can do better than ignore the injustice in Flint where many households are still not assured of clean, affordable tap water. It can do better than give away another 210 million gallons of water a year to Nestlé while thousands of homes in Detroit still do not have running water.
In 2005, in relation to a lawsuit MCWC filed in Mecosta County in 2000, a Michigan appeals court upheld the science and law that 400 gallons per minute from a well in a Michigan glacial headwater spring, wetlands, or creek system causes substantial harm. The court did so because date before, during, and after pumping on the withdrawals and pumping rates showed a direct correlation of pumping at 200 to 400 gallons per minute and drops in flows and levels and serious impacts. But when the 2018 permit was issued, the data was lacking, and what data existed was not used to calculate effects but fed into a computer model targeted to find little harm.
By filing the exceptions and legal brief with the Director, we are urging her to conduct an independent review of the facts and loose interpretations, and overturn a permit that was based on twisting those facts and the law to favor private gain at the expense of our public water.
MCWC and the GTB ask the Whitmer administration, the Attorney General and Director Clark to return state government to respecting the paramount duty of our state leaders to protect our state’s water and live up to the public trust responsibilities granted by our State Constitution and water laws.
We expect the Attorney General and the Director of EGLE to take this opportunity, presented to them by our persistent work, to actually look at the record and the laws in question and do what is right for the people and our precious waters. We expect them to withdraw this permit for Nestlé’s water grab and direct their energies to repairing the injustices of lack of affordable water access in communities such as Detroit and Flint.
Note from FLOW: To support MCWC’s vital work to protect our public trust waters from privatization and commercialization, click here.
Powered by our supporters, FLOW had quite a year in 2019.
Our legal advocacy work to restore the rule of law made a big impact at the state level. Michigan’s new Attorney General Dana Nessel filed a public trust lawsuit on June 27 to revoke the 1953 easement that conditionally authorizes Enbridge to operate its 66-year-old Line 5 oil pipelines in the Straits of Mackinac.
“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood about Nessel’s bold legal action.
On December 3, the Michigan Court of Appeals nullified a lower court order that would have allowed the bottled water giant Nestlé to build an industrial booster pump facility to remove millions of gallons of groundwater per year from Osceola Township. The court affirmed that bottled water is neither an “essential public service” nor a “public water supply”.
“Bottled water diversion and export operations can no longer be paraded as public,” said FLOW founder and president Jim Olson. “The purpose of the bottled water industry has only one purpose—maximum profit off the sale of packaged public water.”
Our work has had a national impact as well. In February, the United States Supreme Court reaffirmed that we have a public trust right to walk the Great Lakes shorelines below the natural high water mark of private property, when it declined to hear an Indiana case filed by riparian land owners. Jim Olson was involved in the original case.
Education and protective policy
FLOW launched several education campaigns in 2019 including a Groundwater Awareness Week, what it is and why it matters; the Michigan Septic Summit on Nov. 6 that convened parties from public health officials to realtors to watershed nonprofits to generate new partnerships and build political will to pass a statewide septic code; an environmental economics project and four policy briefs by former FLOW board chair Skip Pruss about the benefits of government regulation to protect the environment and public health; and a Public Trust month in July that included a “Great Lakes Passport” and a month-long series of videos that featured the public answering the question: “Who owns the Great Lakes?”.
“I am delighted to have the opportunity to work with people from all across the Great Lakes Basin to help improve protection of these public trust waters,” Kirkwood said. “Our challenge in this new century, then, is to break the constant cycle of ruin and recovery, and replace it with sustained protection and prosperity. This is critical in the context of the climate crisis where we are testing the capacity of our ecosystems to rebound.”
FLOW senior policy advisor Dave Dempsey was also invited to present at the Great Lakes Funders Conference in Cleveland in late October.
Celebrating water
FLOW held several events in 2019 to recognize the importance of inspiring citizens viscerally and emotionally (as well as cerebrally) to protect the Great Lakes. We launched our “Art Meets Water” webpage to highlight examples of the heartfelt creativity that inspires us to fight for our public waters. “We all know that water is the source of the future,” says Leelanau County writer Anne-Marie Oomen. “But it’s also a part of our souls and our spirits.”
On June 28, cellist Crispin Campbell and “Mad Angler” poet Mike Delp performed at our “In Praise of Water” benefit for FLOW at the Cathedral Barn at Historic Barns Park in Traverse City. “The Mad Angler finds himself upset about the state of affairs that Michigan rivers find themselves in,” said Delp. “When you hear that deep sound coming out of the cello, that’s the heart of where this comes from… I’m right down inside that cello.”
On July 24, Oomen and the Beach Bards storytellers’ troupe presented, “Love Letters to the Lakes” (which she had solicited from writers across Michigan) in a live reading to the International Joint Commission, in hopes that deeply personal prose would impact public policy to protect the Great Lakes. And on October 11, Higher Art Gallery in Traverse City held “Artists for FLOW,” inviting local artists to share water-inspired works for a show that benefits our fight to protect that water.
After all, protecting the Great Lakes is “A Matter of the Heart” writes FLOW supporter Jerry Beasley:
“What I have learned, and what I believe in the most elemental way, is that our first and most basic relationship with water is anchored in love. In the absence of love, there is the great risk of indifference and failure to protect this resource that, under the Public Trust Doctrine, belongs to us all and is essential to life. If the heart is not engaged, the waters will not be saved. So, while we marshal facts and organize and encourage activism, let us remember to acknowledge the power of our affections and make them a guiding principle in all that we do.”
As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.
Clockwise from top-left: 
