Liz Kirkwood, Executive Director Cell: 570-872-4956
FLOW (For Love of Water) Email: liz@flowforwater.org
Jim Olson, Founder & President Cell: 231-499-8831
FLOW (For Love of Water) Email: olson@envlaw.com
ST. IGNACE – The state of Michigan must immediately apply the law, stop Line 5’s oil flow, and reject a Canadian company’s application to extract more life out of its decaying steel pipelines built in 1953, according to FLOW, a Traverse City-based Great Lakes water law and policy center in public comments made today. The comments came at a public hearing in St. Ignace on Enbridge’s bid for state approval to shore up parts of Line 5 that are bent or deformed due to the company’s neglect and support other areas potentially prone to erosion.
“Enbridge characterizes the application as seeking authorization for routine maintenance,” said Liz Kirkwood, FLOW’s Executive Director and environmental attorney. “The reality is that Enbridge is scurrying to rectify its dangerous neglect of maintenance over decades, including multiple violations of a legal agreement to properly anchor its dual pipelines against the swift currents in the Straits.”
A recent report by Dr. Ed Timm, a FLOW adviser and former Dow Chemical engineer, shows Line 5 is bent and deformed where Enbridge wants to anchor it. The report presents new evidence of structural damage to the western pipe where Enbridge seeks to install five of the 22 anchors into Lake Michigan’s public bottomlands, stemming from a company pattern of violating a 1953 easement granted by the state allowing Enbridge to occupy the Mackinac Straits.
The state’s easement agreement allowing Line 5 to occupy the Mackinac Straits limits unsupported spans to no more than 75 feet, but a 2003 survey identified 16 unsupported spans greater than 140 feet; the longest at 224 feet on the east leg and 286 feet on the west leg. Other Enbridge inspection report revealed nearly 250 instances between 2005 and 2016 of unsupported spans on the pipelines exceeded a 75-foot legal limit in violation of Michigan’s easement agreement with Enbridge. This track record does not provide confidence that the company will fulfill its obligations in the future.
By attempting to cloak the results of its neglect and avoiding an assessment of Line 5’s impacts and alternatives, Enbridge is perpetuating the imminent threat to the Great Lakes and the protected public uses that include fishing, commerce, navigation, recreation, and drinking, according to a legal analysis by FLOW.
In fact, the company’s poor performance as well as the massive work proposed provides a compelling legal basis for the state to consider feasible and prudent alternatives to continued operation of the dual Line 5 pipelines.
“The state of Michigan must consider under rule of law whether there are viable options to the piecemeal patch-up of these aging steel oil pipelines threatening the Great Lakes,” said Jim Olson, FLOW’s founder and president and a renowned water rights attorney. “Enbridge has expanded Line 5 and the new Line 78 from Indiana across lower Michigan to Sarnia under the rubric of ‘maintenance.’ Our cities, villages, and citizens have ended up with Enbridge’s version of the Keystone XL right here in the Great Lakes, and it happened without the public notice, hearings, and independent impact and alternative analyses required by law.”
Line 5 transports nearly 23 million gallons of oil and natural gas liquids each day through the Mackinac Straits, 80 percent more volume than its past design capacity after several of its so-called “maintenance” upgrades.
Of particular concern is Enbridge’s continued failure to predict and prevent the cumulative impacts on Line 5 of lakebed erosion caused by Straits currents that frequently reverse and can exceed 10 times the flow over Niagara Falls.
Contrary to assertions by Enbridge, the state taking action to stop Line 5’s oil flow in the Mackinac Straits to prevent a catastrophic oil spill would not disrupt Michigan’s or the Midwest’s crude oil and propane supply, according to a set of expert reports FLOW released in December 2015. Available capacity and flexibility to meet energy demand in the Great Lakes region already exists in the North American pipeline system run not only by Enbridge, but also by competitors supplying the same refineries in Detroit, Toledo, and Sarnia, Ontario.
“The fact is, Line 5 is not essential,” said Rick Kane, a Michigan-based hazardous materials risk management specialist advising FLOW. “The regional pipeline system can supply crude oil to Michigan and surrounding refineries while eliminating the risk that Line 5 poses to the Great Lakes,” Kane said. “Feasible and prudent alternatives exist to support domestic needs, as well as exports. However, pipeline company owners will not move to implement any alternatives as long as Line 5 operates and the public continues to carry the risk.”
Public Statement
Michigan Department of Environmental Quality
Line 5 Straits New Anchor Structures
Jim Olson
President and Legal Advisor, FLOW (For Love of Water)
July 25, 2017
Director Grether, Division and Unit Chief Fisher, and the Gaylord Office Unit Supervisor Haas, and Great Lakes Submerged Land Specialist Graft:
This statement addresses a primary legal requirement for Enbridge concerning its proposal to locate, occupy, and engage in construction activity for twenty-two (22) new anchor supports on the public trust bottomlands and waters of Lake Michigan. The application as filed requests an activities permit pursuant to the Great Lakes Submerged Lands Act and Rules (“GLSA”) for placement of these twenty-two anchors as “other materials.” As will be seen, these anchors and the pipeline are new and involve far more than placing spoils or other materials as an activities permit. In fact, these anchor supports and line, in combination with the dual lines in the Straits, have never been authorized under the GLSA and public trust law.
FLOW submitted public comments into the record on this application on June 29, 2017, and will submit supplemental public comments and technical reports on or before August 4, 2017, the end of the extended public comment period. For purposes of the public hearing I offer the following specific comment on the legal framework for the proceedings under the GLSA for these twenty-two support anchors and the dual pipelines in the Straits of Mackinac.
First, the history of these new anchor supports, including the proposed twenty-two supports for the dual pipelines is directly related to the failure in design and construction of the original pipelines as authorized by the terms of the 1953 Easement and the substantial increase in crude oil flow rate from 300,000 bpd approved by the Public Service Commission in 1953 and the very new increase to 540,000 bpd as part of Enbridge’s project to expand its Lakeside System. A more detailed description of these anchors and why they are new and need approval to operate these dual lines are contained in FLOW’s June 29 public comment as supplemented by the comments to be filed on or before August 4, including the additional supplemental that will be submitted by technical experts Ed Timm and Gary Street.
Second, these anchor supports are new because they fall outside and were not authorized as part of the pipelines by the 1953 Easement. These anchors are new because they are proposed to prevent further bending in the compromised and deformed lines because of powerful currents and other forces in the Straits. As noted, they are also new because these supports together with other new facilities and equipment along Line 5 are part of the Enbridge expansion of its entire Lakehead System, including the doubling of Line 6b (now Line 78) to Stockbridge in southern Michigan.
In lay person terms, what does this mean? It means that the dual pipelines with these new anchor supports and increased flow volume have not been authorized by agreements to permit the occupancy of these anchor supports on the bottomlands and n the waters of the Great Lakes as required by the GLSLA and its Rules. It means that the pending application for the proposed new twenty-two new supports does not comply with the requirements under the GLSLA and its Rules for a proper agreement or authorization for occupying bottomlands and waters in the Straits.
New structures to prop up a previously authorized line based on the existing define and new and increased volumes as part of a major single expansion project require new authorization. It is as simple as that. Before the Department can act on Enbridge’s application for the construction activity permit for the anchor supports, Enbridge must first apply for and the State must authorize an occupancy conveyance or agreement in accordance with Sections 32502, 32503, and 32505 and other parts of the GLSLA and its Rules.
What to do, then? The most straightforward way to proceed is for the MDEQ to notify Enbridge that it must comply with the requirements for authorization to occupy as I have described above, and to cease or halt the use of the lines in the Straits unless and until these lines with these new anchor supports have been applied for and determined to satisfy the standards and requirements of the GLSLA and its Rules. Recent evidence from Enbridge records and grueling evaluation by Dr. Ed Timm demonstrate that the integrity of the pipelines, as noted above has been precariously compromised, and as a result, according to Dr. Timm, there is in 2017 a probability of a failure in one of the lines as high as forty-six percent (46%).
The only prudent and correct thing for the State to do to prevent impairment or injury to the public trust and public and private riparian rights, public health, and safety, is to halt the flow of oil and put the onus on Enbridge to apply for proper conveyance authorization for these new structures in conjunction with these pipelines—they are inextricably related. Enbridge can decide to apply for these new supports in conjunction with the condition of the pipelines and the eighty percent (80%) increase in flow of crude oil. The State DEQ can now once and for all finally consider and determine as trustee of the public trust protected by the GLSLA, whether Enbridge has shown there is no likely high risk of serious impairment to the public trust interests of Michigan and its citizens.
To date, not one agency has considered the environmental impact or existence of other alternatives related to the increase in flow of crude oil, the new supports and the condition of these lines. The State can now evaluate in an orderly legal process whether the dual lines in the Straits can be or should be authorized. If Enbridge does not apply in order to comply and demonstrate a right to authorization and approval, then that is its own choice, and the State has the power, duty, and right to halt the transport of crude oil or demand decommissioning of the dual lines because they do not comply with state law and regulations enacted under its title and police power to protect its public trust lands and waters.
Thank you.
On June 29, the State of Michigan released for public comment a consultant’s study on alternatives to Line 5, the risky 64-year-old dual oil pipelines that cross the lakebed of the Straits of Mackinac. The state is now holding public meetings on the study.
The study is a major disappointment and contributes little of value to the discussion on the fate of the oil pipelines operating in the Great Lakes since 1953.
FLOW’s position is unchanged: the State of Michigan must terminate the easement allowing Enbridge to use Lake Michigan’s lakebed for the pipelines. The state has the authority and the responsibility to do so to prevent a catastrophic oil spill. In light of Enbridge’s consistent record of disregard for maintenance of Line 5, the state must do so.
* FLOW rejects the alternatives study as fatally tainted by the authors’ blatant conflict of interest. The consulting firm’s vice president has an extensive history of working alongside of, and in support of, Enbridge. The state’s process is now revealed for what it always has been – a distraction from its responsibility to protect the Great Lakes by shutting down Line 5 now.
* Substantively, the alternatives study can’t be taken seriously because it:
FLOW is a leader in the Oil & Water Don’t Mix campaign uniting citizens, businesses, groups, governments, tribes, and faith communities in support of shutting down Line 5 to avoid a catastrophic Great Lakes oil spill.
