Liz Kirkwood, environmental attorney and executive director of FLOW (For Love of Water), reacts to news today that the State of Michigan has granted environmental permit approval for Enbridge’s proposed Line 5 oil tunnel in the Straits of Mackinac:
“We are deeply disappointed by the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE’s) decision today to approve permits for Enbridge’s proposed oil tunnel in the Straits of Mackinac.
“EGLE’s permits ignore direct adverse evidence of the tunnel’s risk to surface waters, wetlands, public trust bottomlands, cultural resources, endangered species, treaty fishing rights, climate change impacts, local economic impacts, tourism, and public and private property. In addition, EGLE’s permits ignore feasible and prudent alternatives to the proposed tunnel.
“EGLE’s action is directly at odds with the legal process underpinning the Governor Whitmer’s revocation and termination on November 13 of the easement allowing Line 5 to operate in the public waters and bottomlands of the Great Lakes. The governor’s November decision was based on determinations required under the Public Trust Doctrine. Those same findings, required by law, were never made for the proposed tunnel.”
Many years and legal and regulatory hurdles remain in the state and federal permitting process for Enbridge’s proposed oil tunnel, which might never be built, but continues to distract from the clear and present danger posed by the decaying Line 5 pipelines in the open waters of the Straits of Mackinac.
Final approval of Enbridge’s proposed oil tunnel remains in doubt as permitting reviews continue by the U.S. Army Corps of Engineers, which is assessing environmental impacts and alternatives, and the Michigan Public Service Commission, which is considering the project’s public need, climate impacts, and location.
The proposed tunnel, at roughly 20-feet in diameter and 4 miles long, would house a new Line 5 pipeline. Enbrige’s goal is for Line 5 to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
Enbridge has a terrible track record of oil spills across Michigan from Line 5 and from Line 6b, which in 2010 dumped more than a million gallons of oil into the Kalamazoo River.
Editor’s note: This is an Oil & Water Don’t Mix (O&WDM) media release.
Twelve organizations and Michigan tribal representatives today (Dec. 7, 2020) called on the U.S. Army Corps of Engineers to reject the Enbridge Line 5 Straits of Mackinac oil tunnel project. If not dismissed now, the Army Corps risks a repeat of a July court ruling that threw out a permit in another major federal pipeline case.
In their submission of comments, the groups told the Army Corps that the permit for the tunnel should not be approved without a full review that evaluates the consequences of an oil tunnel for the Great Lakes, coastal wetlands, historic archeological finds, and navigation within the Straits of Mackinac.
“Enbridge’s proposed tunnel is a major federal action demanding a full environmental impact statement under the National Environmental Policy Act (NEPA),” said Liz Kirkwood, Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City. “A review of Enbridge’s incomplete application reveals a highly controversial project with extraordinary impacts to coastal wetlands, millions of gallons a day of surface wastewater discharges and water treatment additives, underwater archeological sites, incomplete geotechnical studies for tunnel construction, lack of a credible estimate of project cost, and unprecedented climate change impacts to extend the life of Line 5 for the next 99 years.”
Official comments from the organizations come as the Army Corps holds a single public hearing today on Enbridge’s proposal for a federal Clean Water Act permit to construct the oil tunnel. The Army Corps public comment period ends on Dec. 17. It comes as the Michigan Public Service Commission and the state Department of Environment, Great Lakes and Energy also evaluate permit applications from Enbridge and follows a decision by Gov. Whitmer to revoke Enbridge’s operating agreement for the existing Line 5, citing the company’s history of failures and ongoing, incurable violations of the agreement.
“Line 5 will transport 540,000 barrels of oil that when burned will emit over 57 million metric tons of atmospheric carbon annually – more carbon than is emitted by the nation’s three largest coal plants combined,” said Kirkwood. “Let’s not forget what’s at stake – a proposal to build a mega tunnel in the heart of the largest and most valuable fresh surface water system in the world. It’s difficult to conceive of a project more worthy of a full environmental impact statement under federal law.”
The groups and tribal representatives warn that approving Enbridge’s proposed application would violate the same federal law that prompted the U.S. District Court in July to block a final permit for the Dakota Access pipeline in the Dakotas. In the Dakota Access case, the court said the Army Corps must conduct a full review under the National Environmental Policy Act because it was a major federal project with widespread potential impacts, including threats to drinking water sources for the Standing Rock Sioux tribe.
The Army Corps has yet to decide whether Enbridge’s permit application for the tunnel should be subjected to a full federal review that could include looking at other alternatives, including existing oil pipelines within Enbridge’s massive North America pipeline system.
Concerns with the tunnel proposal cited by the groups and shared with the Army Corps include:
Drinking water threat. Enbridge proposes withdrawing 4 million gallons a day of water and discharging 5 million gallons a day of water and slurry into the Straits of Mackinac. Nearby communities of Charlevoix, Mackinac Island, St. Ignace, Alpena, East Tawas, and Tawas City rely on Lake Michigan and Lake Huron for drinking water.
Geotechnical problems. Independent experts who studied Enbridge’s proposed tunnel plan concluded that it “raises serious concerns regarding the feasibility, integrity, and planning for the construction of the tunnel.” More than 75 percent of the tunnel boring area is in “very poor” or “poor” quality rock conditions, the experts warned, also citing the potential for explosions because of the presence of methane gas.
Sovereign tribal and fishing rights. The Straits of Mackinac are the spawning and fishing grounds for 60 percent of the commercial tribal whitefish catch, which could be negatively impacted by the tunnel project and continued operation of Line 5 in the Straits.
Northern Michigan economy. Emmet, Cheboygan, and Mackinac counties would be heavily impacted by the tunnel project, straining police, fire, health emergency services, and rental housing that would typically go to seasonal tourism workers who constitute an annual $153 million payroll. Dust, noise, and intense trucking and machinery activity will also stress local communities.
“Michigan deserves more than a rubber-stamp permit approval from the Army Corps,” said Sean McBrearty, Oil & Water Don’t Mix coordinator. “What we need is for the Army Corps to follow the law and prioritize protecting the Great Lakes, our drinking water, and our climate. A Canadian company’s oil profits shouldn’t be more important than Michigan’s future.”
Those submitting joint comments include For Love of Water (FLOW), League of Women Voters of Michigan, Sierra Club, Clean Water Action, Michigan Environmental Council, Northern Michigan Environmental Action Council, Straits of Mackinac Alliance, Groundwork Center for Resilient Communities, TC350, the Chippewa Ottawa Resource Authority (CORA), the Michigan League of Conservation Voters, and the Straits Area Concerned Citizens for Peace, Justice, and the Environment.
Oil & Water Don’t Mix is a citizens’ movement committed to protecting the Great Lakes and decommissioning Enbridge’s dangerous Line 5 oil pipelines in the Straits of Mackinac. More information: https://www.oilandwaterdontmix.org/about.
FLOW on Nov. 6, 2020, filed an appeal with the Michigan Public Service Commission of the October 23 decision by Administrative Law Judge (ALJ) Dennis W. Mack granting in part Enbridge Energy Limited Partnership’s motion to exclude critical evidence from consideration by the MPSC in deciding whether to permit the siting of Enbridge’s proposed Line 5 oil pipeline tunnel through public trust bottomlands under the Straits of Mackinac, where Lake Michigan meets Lake Huron.
FLOW’s appeal seeks to allow evidence that the proposed, roughly four mile-long oil pipeline tunnel under the Great Lakes would commit the citizens of Michigan for another 99 years to the unnecessary generation of more harmful greenhouse gases. According to the Michigan Department of Health and Human Services, greenhouse gas emissions already have resulted in the impairment of Michigan’s public health and natural resources – effects that will get worse unless CO2 emissions are abated.
Nothing less than the authority of the MPSC to protect the people of Michigan, environment, climate, and public interest of the citizens of Michigan and the Great Lakes for years to come is at stake, according to arguments filed by FLOW and other intervenors and made orally at a September 30 hearing.
“Authorizing a billion-dollar fossil fuel infrastructure project is fundamentally at odds with what science tells us must be done to avoid the most catastrophic effects of climate change,” said Liz Kirkwood, executive director of FLOW, a Great Lakes public trust law and policy center based in Traverse City. “Eliminating the determination of ‘public need’ when granting a Certificate of Necessity makes no sense.”
FLOW’s appeal also contests the ALJ ruling that the MPSC need not make a finding of “public need” to transport up to 8 billion gallons of oil a year for nearly a century in an era of falling demand for crude oil and an economy rapidly shifting to renewable energy. The pipeline tunnel proposed by Enbridge is inseparable from the business of transporting oil through existing Line 5, the Candian company’s 67-year old pipeline that runs from Superior, Wisconsin, through Michigan and on to refineries in Sarnia, Ontario.
Several market indicators suggest that investment in new pipeline infrastructure is highly questionable in light of clear trends indicating a precipitous drop in oil consumption in future years. Analysis released on August 9 by BNP Paribas, the world’s 8th-largest bank, reports “that the economics of oil for gasoline and diesel vehicles versus wind-and solar-powered EVs [electric vehicles] are now in relentless and irreversible decline, with far-reaching implications for both policymakers and the oil majors.”
FLOW is joined by several other intervening parties in the case in appealing to the three-member MPSC to overturn the ALJ ruling. Lawyers filed a joint appeal on behalf of the Michigan Environmental Council, Grand Traverse Band of Ottawa and Chippewa Indians, Tip of the Mitt Watershed Council, and National Wildlife Federation, as well as a joint appeal on behalf of the Environmental Law & Policy Center and the Michigan Climate Action Network. Bay Mills Indian Community also appealed. Attorney General Dana Nessel also sought to support and join in the appeals filed by the groups and tribes.
FLOW’s appeal requests that the MPSC:
Reverse the ALJ’s granting of Enbridge’s motion to exclude evidence of public need and likely environmental effects and alternatives related to the new tunnel and tunnel pipeline and the intended purpose of the tunnel project to engage in business and operations to transport crude oil as part of the tunnel project and the existing Line 5 in Michigan; and
Remand to the ALJ to take appropriate action to incorporate the excluded evidence into the discovery and evidentiary hearing that will be submitted as a full case to the MPSC for final decision and order.
“We’re talking about water, climate, and the plummeting demand for crude oil,” said Jim Olson, FLOW’s founder and legal counsel. “The MPSC by law should fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties.”
“Enbridge’s attempted private takeover of the public’s bottomlands under the Straits of Mackinac for the tunnel project breaches the state’s duty to protect the public trust in the Great Lakes and is not good for the climate or Gov. Whitmer’s goals as the nation and world turn to clean energy for survival,” said Kirkwood.
Many groups, including FLOW and Oil & Water Don’t Mix, have articulated scientific and legal deep concerns about the Canadian pipeline company’s tunnel proposal and its lack of necessity, and risks to the Great Lakes, drinking water, the fishery in the Straits, Tribal rights, the Pure Michigan economy, the climate, and a way of life.
In more details, FLOW’s appeal asserts that:
The ALJ erroneously restricted the Broad Authority of the Commission under Act 16 by excluding review of the new or extended business and operations to transport crude oil through the new tunnel and pipeline.
The exclusion of evidence of “public need” under Act 16 is contrary to the law and deprives the parties the right to introduce evidence on questions of fact related to public need.
The State of Michigan has made new commitments to integrate climate change into government decision-making.
The duty to consider and/or determine the likely effects and alternatives under the Michigan Environmental Protection Act (MEPA) and its case law applies to the new tunnel and tunnel pipeline, and the intended purpose to extend the business and operations of Enbridge to the Straits and all of Line 5.
MEPA requires an evaluation of feasible and prudent alternatives, including a “no action” alternative.
Enbridge’s giant tunnel, at roughly 20-feet in diameter, would house a new Line 5 pipeline to continue for another 99 years carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan connects to Lake Huron.
Starting Tuesday, Sept. 29, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) will host four online public hearings and receive public comment on the expected wetland and wastewater impacts of constructing and operating Enbridge’s proposed, roughly four mile-long oil tunnel under the Great Lakes. The tunnel would house a new Line 5 pipeline to continue carrying up to 23 million gallons of oil and natural gas liquids a day through the public trust bottomlands of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
It’s important for the members of the public—including individuals, families, business owners, community leaders, and others—to sign up ASAP to comment at these online public hearings using the links below because public comment during the meetings likely will be first-come, first-served.
To assist you, FLOW is providing guidance below on the public hearing schedule that runs from Sept. 29 to Oct. 8, how to sign up to comment, key points to consider making, and a template email you can tailor and submit as your written comment too by the Oct. 19 written comment deadline.
Hearing Schedule—Click a link below to register via Zoom and select “Yes” where it asks, “Would you like to make an official comment at this hearing?”:
EGLE Public Hearing on Enbridge Line 5 Application for National Pollutant Discharge Elimination System (NPDES) Wastewater Permit (same meeting will be held once during the day and once at night):
Points to Make in Public Comments at the Public Hearings — FLOW is providing this content for you to draw from and supplement with your own information and perspective. EGLE will provide up to 3 minutes for each public comment. Start by stating your name, where you live, and if you are representing an organization, indicate which one. Here’s our guidance:
Not in Support:
I urge EGLE and the state of Michigan to deny Enbridge’s wetlands resource and NPDES wastewater permit requests to build a tunnel for the Line 5 oil pipeline through the public trust bottomlands of the Straits of Mackinac for the following reasons: 1. Enbridge’s application and project description is too narrow, and does not consider the cumulative effects, the existence of alternatives to the tunnel and wetlands related project purpose pursuant to Sections 303011(1) and 30311(4)(b) of the Wetland Protection Act.
Not authorized — The new easement (December 2018) granted by the former Snyder administration to the Mackinac Straits Corridor Authority and assigned to Enbridge for the proposed tunnel is invalid because it has not been authorized based on the required determinations of the Part 325 of the Great Lakes Submerged Lands Act and/or section 2129 of the public utility easement in bottomlands of Great Lakes law, MCL 324.2129.
Not a Solution, nor the Best Alternative:
It is clear that taking 5-10 more years to study, seek permits, and build a crude oil tunnel under the Straits of Mackinac is not a solution because it fails to address Line 5’s immediate threat to the Great Lakes and Pure Michigan economy and the risk posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas.
Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk.
Not Fully Disclosed:
Enbridge has indicated that the size of the proposed tunnel will increase from a 10 ft diameter to an 18-21 foot diameter, yet Enbridge continues to use the original estimate of $500 million. Since consumers will ultimately pay for the tunnel, it is important to determine the new estimated cost.
The announcement by EGLE that it will defer to other agencies or the MPSC to consider the likely effects and alternatives of the proposed tunnel project is contrary to the law of Michigan under the Michigan Environmental Protection Act (MEPA). MCL 324.1701 and applicable court decisions.
Not Acceptable — Wastewater and Wetland Impacts:
Enbridge is requesting to release up to 5 million gallons/day of treated wastewater back into Lake Michigan on the south shore and up to 14 million gallons daily during storm events. What chemicals will be used in the tunneling process and how will the wastewater be treated to remove those chemicals?
If the waters of the Straits are contaminated, there would be extremely negative impacts to fish populations, tribal fishing rights, and communities who rely on drinking water from the lake and tourism business. How can EGLE consider this permit without having the full details about treatment plans and what chemicals will be used?
Doubling the tunnel diameter also results in quadrupling the volume, with four times as much excavated materials to be removed, staged, and disposed of. What are the increased environmental risks associated with the excavation, staging and disposition of these materials?
Michigan courts have consistently recognized that the Michigan Environmental Protection Act (MEPA) imposes additional environmental review requirements that are supplemental to existing administrative and statutory requirements. Is EGLE conducting a thorough review under MEPA?
Not in the Public Interest:
A permit under Part 303 Wetland Protection “shall not be approved unless the department determines that the issuance of a permit is in the public interest… In determining whether the activity is in the public interest, the benefit which reasonably may be expected to accrue from the proposal shall be balanced against the reasonably foreseeable detriments of the activity.” Clearly this project is not in the public interest when considering the impacts to public surface waters, public bottomlands, public drinking water supplies, the climate, and economy.
A permit under Part 303 Wetland Protection Act “shall not be approved” unless the applicant demonstrates the “need” for the project; clearly, this project is not needed given the obvious decline in demand for oil in the U.S. and world, and because Enbridge’s and Michigan’s future needs for crude oil can be satisfied by the existing crude oil pipeline system in North American and the U.S; and, because the design capacity of Line 6b (now 78) across southern Michigan from Indiana to Sarnia and Detroit or Toledo was doubled when replaced in 2012-2014, which can reasonably handle all of the volume of crude oil and natural gas liquids transported by Line 5 and Straits dual pipelines.
Not Good for the Climate nor Economy:
Line 5 conveys approximately 8.4 billion gallons of oil and natural gas liquids per year, and when burned, yield over 57 million metric tons of CO2 annually. How can EGLE authorize the tunnel in the face of the incontrovertible evidence of environmental and economic harm caused by climate change?
Oil when burned, releases carbon dioxide, carbon monoxide, nitrogen oxides, particulate matter, and unburned hydrocarbons, impairing air quality and having monetizable environmental and health impacts. EGLE must compare the social costs against the benefits.
Continued capital investment in fossil fuel infrastructure is fundamentally at odds with addressing the existential threat of climate change.
Federal agencies must determine the carbon emissions attributable to projects under the National Environmental Policy Act (NEPA); EGLE and the MPSC must undertake the same analyses under MEPA.
Under Part 303, EGLE must consider “the availability of feasible and prudent alternative locations and methods to accomplish the expected benefits from the activity.” EGLE must evaluate the following:
To what extent did the 2010 catastrophic failure and oil spill from Enbridge Line 6B into the Kalamazoo River watershed and the more recent temporary, full and then partial closure of Line 5 result in constriction of supply, market disruption, or price increases to end users?
Does Enbridge Line 6B in southern Michigan, now reconstructed with a larger diameter as Line 78, have the capacity to meet market demand if the tunnel is not built and Line 5 closes?
Is the carrying capacity of the existing network of North American pipelines sufficient to meet future needs? According to FLOW’s experts, available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American energy pipeline system operated by Enbridge and its competitors without threatening our public waters and Pure Michigan economy.
Would cessation of Line 5 result in a new pipeline system equilibrium capable of meeting existing and future demand for oil and natural gas liquids?
What is the potential for the tunnel project to become a stranded asset and liability to the State of Michigan in the event market trends play out as predicted?
Written Comment Also Accepted — The public also can comment in writing at any time until EGLE’s comment deadline on Oct. 19. Here’s the:
Oil & Water Don’t Mix campaign’s public comment form for you to personalize — drawing from FLOW’s guidance provided above — and send, or you can use the EGLE links below.
EGLE public comment page for Part 303 wetland impacts and Part 325 Great Lakes submerged lands impacts.
Above: An underwater image from Canadian oil transport giant Enbridge shows deep grooves in the Straits of Mackinac lake bottom, going up and over one of the twin Line 5 oil pipelines and leaving damage to the pipe’s outer coating, the result of an April 1, 2018, anchor strike.
(Photo: Enbridge via U.S. Senate)
By Jim Olson
The disclosure by Enbridge that 81 feet of Line 5 has been undermined by powerful currents and is slumping points to something far more serious—and dangerous: The 66-year-old dual pipelines in the Straits of Mackinac are failing and also at risk of rupture from a ship’s anchor drag that hooks and rips the pipeline wide open. It is also a violation of the law that governs the protection of the public trust in the Great Lakes and the soils beneath them.
Since at least 2001, Enbridge has known of these risky violations of the easement that the State of Michigan granted in 1953 to conditionally authorized Enbridge to pump oil through twin pipelines, and changed the pipeline’s design by adding anchor supports to shore it up.
At first, it was a few anchors, but between then and now, Enbridge has added a total of 202 supports that elevate 3 miles of dual oil pipelines that were designed to lay on the lakebed of the Straits. The former Michigan Department of Environmental Quality (MDEQ) under the Snyder Administration was an accomplice allowing the supports, but without requiring authorization under Michigan law based on a necessary risk, impact, and alternative assessment.
Rather, the MDEQ until now has looked only at the impact to the lakebed from the screw anchors, nothing more. In other words, a completely new design is being built in the Straits for this dangerous Line 5 that carries nearly 23 million gallons of crude oil daily, and the design has never been evaluated or authorized by the DEQ, now the Department of Environment, Great Lakes, and Energy (EGLE).
The State of Michigan now finally recognizes the greater risk of an anchor strike from the change in design; one dented the dual lines in three places in April 2018, and the State cited this serious risk in its lawsuit filed June 27 against Enbridge to shut down Line 5.
With 3 miles (almost 40 percent) of the Line 5 crude oil lines in the Straits now 2 to 4 feet above the lakebed, the next strike has a strong likelihood of hooking and rupturing the lines; causing a massive release that will devastate hundreds of miles of Lake Huron and Lake Michigan; shut down Mackinac Island, ferries, ships, drinking water, fishing, boating, and recreation; and destroy the habitat and ecosystem and economy for years to come—to wit: the Deep Horizons blowout in the Gulf of Mexico.
Fortunately, we have new leadership in Governor Gretchen Whitmer (call her office at 517-373-3400, or share your opinion here) and EGLE Director Liesl Clark (call her at 800-292-4706), who can correct this attack on the public trust rights of citizens in the Great Lakes, and restore the rule of law that was abandoned by the Snyder administration for 8 years.What should you do?Email or call Governor Whitmer and Director Clark , and urge them to take action immediately by sending a letter to Enbridge demanding it apply for authorization of this major change in design not covered by the 1953 easement, and never evaluated or allowed.
Jim Olson is FLOW’s Founder, President, and Legal Advisor.
Above: FLOW’s Liz Kirkwood speaking in opposition to a proposed oil tunnel in the Straits of Mackinac, during a November 8, 2018, hearing in St. Ignace.
In the world of public relations, there are facts, exaggerations, and untruths. Right now, Enbridge is bombarding the people of Michigan with hazy PR claims that it has safely operated the Line 5 oil pipelines in the open waters of the Straits of Mackinac for the last 66 years.
The Canadian energy pipeline giant, however, conveniently fails to tell the public that it has allowed the pipelines to deteriorate badly, bending and grinding on the lake bottom in the fierce currents. Enbridge also neglects to mention that on April Fools’ Day 2018, Line 5 threatened to dump its oil into the Great Lakes when a tugboat anchor struck, and risked breaching, the underwater pipelines.
Rather than seizing on this near-disaster to decommission the decaying pipeline infrastructure built in 1953, the Snyder administration instead spent its final eight months in office cementing a private pact with Enbridge. The backroom deal would leave Line 5 vulnerable to another anchor strike or rupture for up to a decade while Enbridge explores the feasibility of building an oil tunnel under the Straits.
Michigan’s new attorney general, Dana Nessel, in late March correctly determined that the tunnel law passed hastily in the waning days of the 2018 lame-duck legislature was unconstitutional. Gov. Gretchen Whitmer later that same day directed all state departments to halt work on tunnel permitting. But Gov. Whitmer’s recent opening of negotiations with Enbridge seeking to speed up the stalled tunnel process contradicts her own directive and circumvents a transparent public process.
Trying to hasten a bad idea won’t make it any better. While seeking to revive Snyder’s 99-year tunnel deal with Enbridge risks undermining Gov. Whitmer’s own goal to combat climate change risks and impacts.
And Enbridge and the former Snyder administration’s claims that the proposed oil tunnel would serve a public purpose by also housing electrical and other utilities is a ruse that masks an enormous risk of explosion, as experts advising FLOW determined in prior research.
Just today, in fact, an electrical supplier to the Upper Peninsula – American Transmission Company or “ATC” – issued a letter indicating that it has no intention of running its 138,000-volt electric lines through the proposed oil tunnel. “A tunnel of uncertain timing, later in the decade, does not serve the public,” the letter stated. “ATC does not believe that installing high voltage electric lines in close proximity to high pressure oil or gas lines is a good idea.”
It’s never been clearer that Enbridge is pretending there’s a public purpose to their private oil tunnel in order to gain access to the public waters and bottomlands of the Great Lakes. The Great Lakes Submerged Lands Act requires there be a “public purpose,” no impairment or interference with fishing and other public trust uses and rights of citizens and communities, and a showing of no feasible and prudent alternative for transporting Canadian oil back to Canada. The state of Michigan must restore the rule of law and transparency by requiring Enbridge to apply to build a tunnel in the Straits under the law, not negotiate occupancy of public bottomlands behind closed doors.
The real solution to the Line 5 threat must protect the Great Lakes, which define Michigan, drive our economy, and provide drinking water to half the state’s population. Gov. Whitmer must heed her campaign promise to shut down Line 5, while implementing a common-sense backup plan for propane transport in the Upper Peninsula using truck, train, or a small new pipe that doesn’t cross the Straits of Mackinac.
Let’s cut through Enbridge’s PR-fog and get the facts straight. Line 5 is not vital energy infrastructure for Michigan. More than 90 percent of the oil in Line 5 comes from and flows back to Canada.
Enbridge’s dismal track record is underscored by its 2010 Line 6B Kalamazoo River disaster – known as the largest inland tar sands oil spill in U.S. history – and extends to Line 5, which has leaked in total over a million gallons of oil in Michigan and Wisconsin from at least 33 known spills since 1968.
Infrastructure needs abound in Michigan – ranging from our failing drinking water and wastewater infrastructure to the aging Soo Locks and a long-term clean energy plan for the U.P and the state as a whole. Let’s shut down Line 5 and create jobs focused on those real needs, instead of protecting Enbridge’s private interest in our public waters.
FLOW Statement on Negotiations Between Gov. Whitmer and Enbridge on Line 5 Tunnel, Pipeline
Traverse City, Mich. –FLOW (For Love of Water) issued the following statement on the disclosure that Gov. Gretchen Whitmer and Enbridge Energy will discuss expediting construction of an oil tunnel beneath the Straits of Mackinac while the company’s troubled Line 5 pipelines continue operation in the Straits:
“We are concerned about this development. Every day that the Line 5 pipelines continue to operate is a risk to our precious Great Lakes,” said FLOW executive director Liz Kirkwood. “State government’s efforts should first and foremost be devoted to shutting the pipeline down, not negotiating its continued operation while a tunnel is explored and possibly built.
“Now that the Governor has chosen to engage in this process, we hope and trust it will be a transparent one. It is unfortunate that her predecessor engaged in secret talks on agreements with Enbridge, and the lame-duck Legislature was so eager to benefit Enbridge that it passed a sloppy statute that the Attorney General ruled unconstitutional. We are confident this Governor will operate differently,” Kirkwood said.
“We are also hopeful that the Governor will restore and apply the rule of law to Enbridge’s operations in the Straits. Any easement or lease of Great Lakes bottomlands and any private control for a 99-year tunnel by a private company like Enbridge for a private operation must be authorized under the Great Lakes Submerged Lands Act (GLSLA),” said Jim Olson, President of FLOW.
“The GLSLA ensures a public review, analysis, participation, and a determination under standards that protect the public trust in the waters of the Great Lakes and the soils beneath them from privatization and impairment. It also ensures a thorough evaluation of feasible and prudent alternatives, including ones that do not involve use or control of the Great Lakes. No agreement between the executive branch and a private company can override this fundamental law,” Olson said.
Now that Michigan’s governor and attorney general have sunk the oil tunnel scheme hatched by the last administration, I’m asked nearly every day: What can citizens and state leaders do to shut down the propped-up, banged-up Line 5 oil pipelines in the Straits of Mackinac for good?
Here’s my answer, as succinctly as I can distill it, accompanied by a summary of the law and political history in play.
So what should Governor Whitmer and Attorney General Nessel do?
Governor Gretchen Whitmer and Attorney General Dana Nessel must take swift and comprehensive actions to review and reverse the improper failure of the former Snyder administration to bring Line 5-owner Enbridge under the rule of law. Enbridge has had its way with Michigan’s prior elected officials, and it is time to call a halt to this nonsense. Here are the steps to getting Enbridge out of the Great Lakes for good:
Proposed Oil Tunnel:
Send a Letter: Tunnel Deal Is Dead– Governor Whitmer and Attorney General Nessel should send a formal letter to Enbridge advising the company that its agreements calling for a transfer or occupancy of the Straits of Mackinac public trust bottomlands, the new state-granted easement, and 99-year lease for the proposed oil tunnel that would house a new Line 5 are unenforceable unless Enbridge has obtained authorization under state law – the Great Lakes Submerged Lands Act (GLSLA).
Line 5 in the Straits:
Send another Letter: No Life Support for Line 5 – Governor Whitmer and the Michigan Department of Environmental Quality (DEQ), along with Attorney General Nessel, should send a letter to Enbridge advising it that the agreements purporting to grant Enbridge occupancy and use of waters and bottomlands the existing Line 5 for 10 years or more are unenforceable, because the former administration and Enbridge failed to obtain the required authorization under the GLSLA.
Apply the Law to the Redesign of the Ailing Pipelines – Governor Whitmer and the DEQ, along with Attorney General Nessel, should investigate and correct the lack of review and showings required by the GLSLA and public trust law for the substantial change in design implemented for the 3 miles of pipeline elevated above the lakebed under the guise of “repair.”Enbridge should be instructed that it must show the risks and magnitude of harm are minimal and that there exist no other alternative than the existing line in the Straits or Great Lakes.
How Did We Get Here on Line 5? Tracing the Law and the Politics
The plotting of former Governor Snyder’s administration and Enbridge to hand over the public trust soils and bedrock under the Straits of Mackinac for the company to build and operate a new crude oil pipeline in a tunnel for 99 years has been put on hold.
On her first full day in office, Governor Gretchen Whitmer asked Attorney General Dana Nessel for a formal opinion on whether the Snyder-Enbridge agreement and legislature’s stamp of approval through a lame-duck law known as “Act 359” to hand over the Straits for Enbridge’s tunnel to Enbridge was constitutional.In late March, Attorney General Nessel found it was not constitutional because the legislature tried to graft a private tunnel-pipeline project onto a public infrastructure law that governs a public icon—the Mackinac Bridge.
Revoke the Easement – Attorney General Nessel along with the Department of Natural Resources (DNR), along with the above actions, revoke the 1953 easement because under the current circumstances the existing Line 5 is no longer in compliance with the common law standards of the paramount interests of the Great Lakes protected by public trust law; if Enbridge desires to continue using the existing line in the Straits, the company must submit an application for authorization of such use and occupancy along with the authorizations identified in this list.
Increase Insurance Requirement and Verify It – Governor Whitmer, the DEQ, and the DNR, with the Attorney General, should require Enbridge to submit financial assurances that cover the worst case economic and natural resources damages of at least $6 billion (significantly more than the current cap of $1.8 billion), retain qualified experts to determine the adequacy of those assurances, and require Enbridge to name the State of Michigan as an “additional insured” and/or “named insured” on its insurance coverage for Line 5. Inadequate insurance is another cause for revoking the easement.
Once the Governor and Attorney General do these things, they will have taken action consistent with their pledge in being elected to lead the State and protect the Great Lakes, by nullifying the improper actions and agreements of their predecessors and bringing Enbridge, finally, under the rule of law. Regardless of the outcome, the interested parties, communities, and persons in this controversy and the government will be required to make determinations concerning the fate of Line 5 in an open forum based on facts, science, and law.We are ruled by law, not by self-serving agreements that were plotted to avoid it.
Given President Trump’s executive orders this week to water-down or smooth over federal laws and regulations affecting water, the Great Lakes, and pipelines, it is more critical than ever that Governor Whitmer and Attorney General Nessel exercise the full jurisdiction and authority they and the State of Michigan under its exclusive power over use of the waters and bottomlands of the Great Lakes, its lakes and streams, public lands, and the public trust in the Great Lakes and navigable waters and public common property of Michigan. This trust imposes a duty on our leaders to protect the interests of citizens, the legal beneficiaries of this trust. Not the President, not Congress, not federal agencies, or state government can repeal, limit, or narrow the state’s duties and citizens’ individual and common rights under this public trust.
What Should Citizens Do?
It is quite simple: Citizens should do what they always do best. Continue to stay involved, increase communications to Governor Whitmer, Attorney General Nessel, and the Director of the DEQ, and the DNR.These communications should do the following:
FLOW supports attorney general’s process and opinion, which is binding on state agencies and rejects the fatally flawed law and undermines side agreements on Enbridge oil pipelines, proposed tunnel in Mackinac Straits
In a major step toward restoring the rule of law, Michigan Attorney General Dana Nessel issued an opinion today declaring unconstitutional a hastily crafted law that sought to give away Great Lakes public trust bottomlands to Enbridge for 99 years for a private oil tunnel, while allowing the aged, dangerous existing “Line 5” oil pipelines in the Straits to continue operating for another decade as the tunnel is considered and possibly built.
The move comes in response to a formal requestby Gov. Gretchen Whitmer and is critical to unpacking the layers of problems with the law creating the Mackinac Straits Corridor Authority that the lame-duck legislature rushed through in late 2018.
“We applaud Attorney General Nessel for clearly recognizing the legislative overreach, restoring the rule of law, and stopping the attack on the Great Lakes and the state constitution, which demands that the state’s air, water, and natural resources are treated and protected as ‘paramount,’” said Liz Kirkwood, an environmental attorney and Executive Director of FLOW (For Love of Water), a Great Lakes law and policy center based in Traverse City.
The attorney general’s opinion on Public Act 359 is binding on state agencies and voids the tunnel agreement called for by the law, and also nullifies the legal effect of the side agreements reached between the state of Michigan under then-Gov. Rick Snyder and Line 5-owner Enbridge. Those agreements allowed continued oil pumping through the Straits, where Lake Michigan meets Lake Huron, and an easement and 99-year lease of Great Lakes public bottomlands to Canadian-based Enbridge for private control of the tunnel for its own gain.
Public Act 359 and the related agreements for a tunnel and continued use of the existing, flawed Line 5 were not authorized under the standards of public trust law; the state and Enbridge flouted the Great Lakes Submerged Lands Act (GLSLA) that requires transfers and agreements for occupancy of the soils of under the Great Lakes by trying to avoid and ignore this most basic law and public trust principles.
Public Act 359 and the side agreements are peppered with other serious problems, most of which are covered by the questions the Governor asked the Attorney General to answer, which include:
Adding the tunnel and corridor authority to the 1952 law that created the Mackinac Bridge Authority goes far beyond the original public purpose to build a public bridge;
Establishing a term for members of the board of the corridor authority that exceeds the 4-year limit under Article III of the Michigan Constitution;
Violating provisions of the state constitution that prohibit fostering private or special purposes, the commingling of the government to aid primarily private projects, the appropriation of public property for private purposes, and the entanglement of the credit and taxpayers of the State for primarily private purposes.
“We hope this critical first step by theAttorney General will be followed by an immediate and full review of the Snyder administration’s and agencies’ deliberate evasion of the rule of law and mishandling of the grave and continuing risks of the existing Line 5, and the real and imminent threat to the Straits of Mackinac, towns and cities like Mackinac Island, tribal fishing interests, private property interests, businesses, and the rights of the public in the soils and waters of the Great Lakes,” said Olson.
FLOW recommends that Gov. Whitmer take immediate action to end the massive threat posed by the existing Line 5 in the Straits of Mackinac in a swift and orderly fashion based on the rule of law under our state constitution, statutes, and the public trust doctrine in the Great Lakes, including by:
Acknowledging that State of Michigan agencies are bound by the attorney general’s opinion.
Sending a letter to Enbridge indicating that the company should decide for itself, if it wants to build a new oil tunnel, and apply, if it chooses under the Great Lakes to construct a tunnel under the rule of law. The rule of law requires a full consideration of the risk to the paramount public rights in the soils and waters of the Great Lakes, and a showing that the company has no prudent and feasible alternatives to using the Great Lakes as a shortcut for western Canadian oil on its way to refineries in eastern Canada as well as overseas markets.If the company does not chose to do this, or cannot satisfy these mandatory requirements that protect the Great Lakes, then it should choose to use other parts of its several-thousand mile system.
Starting the process to decommission the 66-year-old Line 5 pipelines in the Straits of Mackinac, which are operating without lawful authority, in violation of the public trust and GLSLA, and in violation of their 1953 easement granted by the state. If Enbridge chooses to continue operating the existing Line 5 in the future, it can apply under the GLSLA for new authority to continue using Line 5 if it can demonstrate little risk and no feasible and prudent alternative to the unacceptable existing Line 5, but the state is not obligated to agree.
“Public Act 359, coupled with the State’s public entanglement with Enbridge, has put private gain and economic interests above the State’s and public’s paramount trust interest in the waters and soils of the Great Lakes,” said Olson. “The unconstitutional law and entangled state and Enbridge agreements represent one of the largest, if not largest, threats in the state’s history to the state’s ownership and public trust duty to protect the public’s rights and uses from private takeover or harm to the Great Lakes.”
On its 61st birthday, the Mackinac Bridge faces its biggest threat to date
FOR IMMEDIATE RELEASE November 1, 2018
Contact: Liz Kirkwood, Executive Director Email: Liz@FLOWforWater.org
FLOW (For Love of Water) Office: (231) 944-1568, Cell: (570) 872-4956
TRAVERSE CITY, MI – The use of the legal powers of the Mackinac Bridge Authority (MBA) to facilitate an oil tunnel under the Straits of Mackinac, as proposed by outgoing Gov. Rick Snyder in a secretly negotiated deal with Enbridge Energy Partners, violates environmental provisions of Michigan’s Constitution and laws, threatens the fiscal integrity of the MBA and its Mackinac Bridge, and could subject the authority and taxpayers to billions of dollars of liability in the event of a tunnel accident, FLOW said today in a letter to members of the authority.
FLOW called on the MBA to reject the proposed public-private partnership, or any other agreement with Enbridge, for the proposed tunnel or other privately owned utilities. The MBA Board on November 8 in St. Ignace will, for the first time, hold a public meeting to learn about and discuss its proposed role in the Snyder-Enbridge agreement that’s been hashed out covertly by Gov. Snyder for at least a year. Snyder in recent months has stacked the MBA Board with a majority that shares his tunnel vision.
“In law and practice since the day the Mackinac Bridge opened on November 1, 1957, exactly 61 years ago today, the MBA and the bridge have been jealously protected as a completely independent and stand-alone entity,” said FLOW Founder and President Jim Olson, who is an environmental attorney. “The bridge was a singular, and wholly public, state project for its citizens and the general motoring public connecting the people of both peninsulas. A key provision of the Snyder-Enbridge deal would do just the opposite. It demands that the MBA agree to and participate in a ‘public-private partnership,’ which is vastly different from a state-sponsored project for a singular public purpose like transporting the citizens and general public.”
The Snyder-Enbridge deal provides that the MBA would own the proposed oil tunnel and lease it to Enbridge for 99 years. However, while a lease in theory could provide for indemnification of the MBA for any liabilities, damages, or losses, these are only contractual assurances and will not prevent the MBA from being held liable for any occurrences, including catastrophic damages and losses, as owner and overseer of the project and its operation for essentially a private function. In essence, the MBA’s protection through such contractual promises is a fantasy.
“The MBA should postpone any hasty decisions that dilute its single-purpose mission to protect and maintain the Mackinac Bridge and that burden this authority for the next century to take ownership responsibility for a risky private tunnel venture,” FLOW wrote.
FLOW Executive Director Liz Kirkwood observed, “Enbridge has other alternatives not threatening the Great Lakes that this foreign corporation can and should use its own financial resources and borrowing power to apply for the necessary lands, authorizations, and permits to implement those options.”
Michigan’s legislature enacted the Mackinac Bridge Authority in 1952 for the express and singular purpose of building, maintaining, and operating the Mackinac Bridge. The bridge was opened for traffic on November 1, 1957. To this public end, the MBA has operated for more than six decades as an independent authority designed to be free from outside influence and political pressure. Each of Michigan’s governors since that time has appointed members to the MBA who have fiercely defended its independence. The MBA’s singular mission is to maintain and govern this iconic infrastructure that spans and unites our Michigan peninsulas.
In 2004, the Michigan Department of Transportation sought to increase the control of over the MBA and its engineering, finances, and employees. In response, the state legislature voted the next year in unanimous, bipartisan fashion (107-0 in the house, 38-0 in the senate) to amend to the MBA law to prohibit state government interference. The 2005 amendment expressly directs that the MBA and its core tasks must be kept “independent” and free of interference by state agencies and officials.
“The principle of MBA independence, so critical to lawmakers for six decades, is too important to be cast aside by a lame-duck governor in the waning weeks of his administration,” Olson said.
The MBA’s stand-alone powers also do not satisfy the modern legal regime designed to protect the public interest and public trust resources. For example, the MBA Act exempts the actions of the authority to transfer public lands, bottomlands, and construct the bridge from “any approvals required from state boards or agencies.” However, using the MBA Act to authorize Great Lakes oil tunnel construction would be inconsistent with the mandates, policies, and standards of the Great Lakes Submerged Lands Act; Article 4, Sec. 52 of the state’s 1963 Constitution; the 1970 Michigan Environmental Protection Act; and the 2002 Michigan statute banning oil and gas drilling under the Great Lakes.
The waters of the Great Lakes and the lands beneath them are held in and protected by a public trust, Kirkwood explained. “The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation, said Kirkwood, an environmental attorney. “As a general rule, there can be no disposition, transfer, conveyance, occupancy, or use of any kind of these public trust waters and the soils beneath them, unless there is a statute authorizing this and the action predominantly serves a public interest, not a private one.”